Naval Education and Training Command

NAVEDTRA 10725-B March 1989 0503-LP-481-2100

Nonresident Training Course (NRTC)

Navy Admiralty Law Practice

Only one answer sheet is included in the NRTC. Reproduce the required number of sheets you need or get answer sheets from your ESO or designated officer.

DISTRIBUTION STATEMENT A: Approved for public release; distribution is unlimited.

The public may request copies of this document by following the purchasing instruction on the inside cover.

Reviewed and approved for continued use on 11 April 1995.

DISTRIBUTION STATEMENT A: Approved for public release; distribution is unlimited.

The public may request copies of this document by writing to Superintendent of Documents, Government Printing Office, Washington, DC 20402-0001 or to the ASO/NPFD, Attention Cash Sales (Code 1013), 5801 Tabor Avenue, Philadelphia, PA 19120-5099.

NAVY ADMIRALTY LAW PRACTICE

NAVEDTRA 10725-B
Prepared by the Naval Education and Training Program Management Support Activity, Pensacola, Florida

Congratulations! By enrolling in this course, you have demonstrated a desire to improve yourself and the Navy. Remember, however, this self-study course is only one part of the total Navy training program. Practical experience, schools, selected reading, and your desire to succeed are also necessary to successfully round out a fully meaningful training program. You have taken an important step in self-improvement. Keep up the good work. HOW TO COMPLETE THIS COURSE SUCCESSFULLY ERRATA: If an errata comes with this course, make all indicated changes or corrections before you start Do not change or correct the any assignment. Training Manual (TRAMAN) or assignments in any other way. TEXTBOOK ASSIGNMENTS: The TRAMAN for this course is (1) Admiralty Law and Its Application in Navy Admiralty Claims Practice: a Primer and (2) Chapter XII, Admiralty Claims and Appendix A-12-a of the Manual of the Judge Advaocate General, JAGINST 5800.7b, Change 7. The TRAMAN pages that you are to study are listed at the beginning of each assignment. Study these pages carefully before attempting to answer the questions in the course. Pay close attention to tables and illustrations because they contain information that will help you understand the text. Read the learning objectives provided at the beginning of each chapter or topic in the text and/or preceding each set of questions in the course. Learning objectives state what you should be able to do after studying the material. Answering the questions correctly helps you accomplish the objectives. BLACK DOT INFORMATION: Black dots (.) may be used in the text and correspondence course to emphasize important or supplemental information and to highlight instructions for answering certain questions. Read these black dot entries carefully; they will help you answer the questions and understand the material. SELECTING YOUR ANSWERS: After studying the TRAMAN, you should be ready to answer the questions in the assignment. Read each question carefully, then select the BEST answer. Be sure to select your answer from the subject matter in the TRAMAN. You may refer freely to the TRAMAN and seek advice and information from others on problems that may arise in the course. However, the answers must be the result of your own work and decisions. You are prohibited from referring to or copying the answers of others and from giving answers to anyone else taking the same course. Failure to follow these rules can result in suspension from the course and disciplinary action. SUBMITTING COMPLETED ANSWER SHEETS: Complete all assignments as quickly as possible to derive maximum benefit from the course. As a minimum, you must submit at least one assignment per month. This is a requirement established by the Chief of Naval Education and Training. Failure to meet this requirement could result in disenrollment from the course. TYPES OF ANSWER SHEETS: If you are a U.S. Navy enlisted member on active duty or a drilling U.S. Naval Reserve enlisted member, you should use the answer sheet attached at the end of this course and follow the instructions in section A below. If you are an enlisted U.S. Naval Reserve member who is n o t attached to a drilling unit or if you are an officer, a civilian, or a member of the U.S. Army, Air Force, Marine Corps, or Coast Guard, you should use the Automatic Data Processing (ADP) answer sheets included in the course package and follow the instructions in section B. i

A.

Manually Scored Answer Sheets

If you are a U.S. Navy enlisted member on active duty or attached to a U.S. Naval Reserve drilling unit, your course will be administered by your local command. You must use the answer sheet designed for manual scoring, NETPMSA form 1430/5, Stock Ordering Number 0502-LP-216-0100. You may get a supply of the forms from your Educational Services Officer (ESO), or you may reproduce the one in the back of this course booklet. DO NOT USE THIS FORM FOR COURSES ADMINISTERED BY NETPMSA. Recording Information on the Manually Scored Answer Sheets: As you complete each assignment, submit the completed answer sheet to your ESO for grading. You may submit more than one answer sheet at a time. Remember, you must submit at least one assignment each month. Grading: Your ESO will grade each answer sheet and notify you of any incorrect answers. The passing score for each assignment is 3.2. If you receive less than 3.2 on any assignment, the ESO will list the questions you answered incorrectly and give you an answer sheet marked RESUBMIT. You must redo the assignment and complete the RESUBMIT answer sheet. The maximum score you can receive for a resubmitted assignment is 3.2. Course Completion: After you have submitted all the answer sheets and have earned at least 3.2 on each assignment, your command should give you credit for this course by making the appropriate entry in your service record. Student Questions: If you have questions concerning the administration of this course, consult your ESO. B. ADP Answer Sheets

course package. You should use one blank original ADP answer sheet for each assignment. Use only the original ADP answer sheet provided in your c o u r s e p a c k a g e ; NETPMSA will not accept reproductions. Recording Information on the ADP Answer Sheets: Follow the MARKING INSTRUCTIONS on each answer sheet. Be sure that blocks 1, 2, and 3 are filled in correctly. This information is necessary for your course to be properly processed and for you to receive credit for your work. As you work the course, be sure to mark your answers in the course booklet because your answer sheets will not be returned to you. When you have completed an assignment, transfer your answer from the course booklet to the answer sheet. Mailing the Completed ADP Answer Sheets: Upon completing an assignment, mail the completed answer sheet to: COMMANDING OFFICER NETPMSA CODE 036 6490 SAUFLEY FIELD RD PENSACOLA FL 32559-5000 Use envelopes to mail your answer sheets. You must provide your own envelopes or request them from your ESO. You may enclose more than one answer sheet in a single envelope. Remember, regardless of how many answer sheets you submit at a time, NETPMSA should receive at least one assignment a month. NOTE: DO NOT USE THE COURSE COMMENTS PAGE AS AN ENVELOPE FOR RETURNING ANSWER SHEETS OR OTHER COURSE MATERIALS. Grading: NETPMSA will grade the answer sheets and notify you by letter concerning your grade for each assignment, your incorrect answers, and your final grade. The passing score for each assignment is 3.2. If you receive less than 3,2 on any assignment, you must rework the assignment. NETPMSA will enclose a new ADP answer sheet in

If you are an enlisted U.S. Naval Reserve member who is not attached to a drilling reserve unit or if you are an officer, a civilian, or a member of the U.S. Army, Air Force, Marine Corps, or Coast Guard, use the ADP answer sheets provided in your

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the letter notifying you of the questions you answered You will be required to redo the incorrectly. assignment and resubmit the new answer sheet. The maximum score you can receive for a resubmitted assignment is 3.2. Course Completion: When you complete the last assignment, fill out the Course Completion form in the back of the course and enclose it with your last answer sheet. NETPMSA will issue you a letter certifying that you satisfactorily completed the course. You should make sure that credit for the You course is recorded in your service record. MAY RETAIN THE TEXT. NOTE: YOUR OFFICIAL COURSE COMPLETION DATE WILL BE THE DATE YOUR LAST ASSIGNMENT IS PROCESSED THROUGH THE NETPMSA ADP SYSTEM--NOT THE DATE YOU DEPOSIT THE LAST ASSIGNMENT IN THE MAIL. This is especially important if you are taking the course for Naval Reserve retirement credit. You must mail your answer sheets at least 60 days before your anniversary date. This will provide you with enough time for delays in the mail or reworking failed DO NOT MAIL YOUR assignments. ASSIGNMENTS TO THE NAVAL RESERVE PERSONNEL COMMAND (NRPC). Refer questions Student Questions: NETPMSA by mail (use concerning this course to the address on page ii) or by telephone: DSN 9221366 or commercial (904) 452-1366. NAVAL RESERVE RETIREMENT CREDIT If you are a member of the Naval Reserve, you will receive retirement points if you are authorized to receive them under current directives governing retirement of Naval Reserve personnel. For the purpose of Naval Reserve retirement, this edition of the course is evaluated at 4 points. These points will be credited to you upon your satisfactory completion of the entire course. NOTE: YOUR OFFICIAL COURSE COMPLETION DATE WILL BE THE DATE YOUR LAST ASSIGNMENT IS PROCESSED THROUGH THE NETPMSA ADP SYSTEM--NOT THE DATE

YOU DEPOSIT THE LAST ASSIGNMENT IN THE MAIL. Refer to the Course Completion paragraph under section B. ADP Answer Sheets. COURSE OBJECTIVES Navy Admiralty Law Practice is intended for use both by the judge advocate and the line officer who has had little or no experience with claims or litigation arising out of the operation of naval vessels. As you complete this course, you should acquire sufficient general information to enable you to take action necessary to protect the interests of the Government when confronted with or involved in a situation out of which an admiralty claim could arise. You will also acquire a knowledge of the practice and procedures applicable to handling admiralty matters in the Navy, including procedures and requirements for handling the preliminaries for admiralty tort claims and the litigation that can result from operations of naval vessels.

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Naval courses may include several types of questions--multiple-choice, true-false, matching, etc. The questions are not grouped by type but by subject matter. They are presented in the same general sequence as the textbook material upon which they are based. This presentation is designed to preserve continuity of thought, permitting step-by-step development of ideas. Not all courses use all of the types of questions available. The student can readily identify the type of each question, and the action required, by inspection of the samples given below. MULTIPLE-CHOICE QUESTIONS Each question contains several alternatives, one of which provides the best answer to the question. alternative, and blacken the appropriate box on the answer sheet. SAMPLE s-1. Who was the first person appointed Secretary of Defense under the National Security Act of 1947? 1. 2. 3. 4. George Marshall James Forrestal Chester Nimitz William Halsey TRUE-FALSE QUESTIONS Mark each statement true or false as indicated below. If any part of the statement is false the statement is to be considered false. Make the decision, and blacken the appropriate box on the answer sheet. SAMPLE s-2. All naval officers are authorized to correspond officially with any systems command of the Department of the Navy without their respective commanding officers endorsement. 1. True 2. False MATCHING QUESTIONS Each set of questions consists of two columns, each listing words, phrases or sentences. The task is to select the item in column B which is the best match for the item in column A that is being considered. Items in column B may be used once, more than once, or not at all. Specific instructions are given with each set of questions. Select the numbers identifying the answers and blacken the appropriate boxes on the answer sheet. SAMPLE In questions s-3 through s-6, match the name of the shipboard officer in column A by selecting from column B the name of the department in which the officer functions. Some responses may be used once, more than once, or not at all. B. DEPARTMENT Operations Department Engineering Department Supply Department Indicate in this way on the answer sheet: Indicate in this way on the answer sheet: Indicate in this way on the answer sheet: Select the best

A. OFFICER s-3. s-4. s-5. s-6. Damage Control Assistant 1. CIC Officer Disbursing Officer Communications Officer 2. 3.

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ADMIRALTY LAW AND ITS APPLICATION IN NAVY ADMIRALTY CLAIMS PRACTICE: A PRIMER

by Lieutenant Commander Kevin P. McMahon, JAGC, USN

I.

THE ORIGINS AND NATURE OF ADMIRALTY LAW1

Let us examine briefly this thing known as admiralty law, this tool for It is a resolving the controversies which arise out of maritime damage. strange thing, this admiralty law, but it has been with us a long time. It has its roots in antiquity. The most ancient and at the same time the most simple law was the law of the jungle under which loss or damage caused by another was simply allowed to lie where it fell. The victim absorbed his loss without compensation from anyone. But mans sense of justice was inflamed by the fact that a person damaged without fault on his part had no recourse by a peaceful means to recover his loss from the ones who did the injury. Of course, the injured party could use self-help by way of revenge but this only added to the sum total of loss and greatly disturbed the peace of the community. Hence, mans progress from a savage to a civilized state has been marked by the development of rules designed to overcome the law of the jungle. No longer under law does the loss lie where it falls. The law causes the responsible party, or the party at fault, to make the injured party whole. If you willfully or negligently injure your neighbor or damage his property and he be without fault, the courts will require that you respond in damages in order that your neighbor may be made whole once again. The law will not let the loss lie where it fell.

Sections I and II of this article are derived, in large part, from a paper entitled Admiralty Law and Its Relation to Command at Sea, which was based on a lecture delivered at the Naval War College on 18 May 1953 by Rear Admiral Ira H. Nunn, U.S. Navy, who served as Judge Advocate General of the Navy from 1952 to 1956. For many years, Admiral Nunns paper, as periodically updated, constituted a portion of the textual material for the Navys correspondence course Navy Admiralty Law Practice. This article, which expands on the foundation created by Admiral Nunn, is replacing his paper as a part of that course.
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This concept of the party at fault responding in damages to the party aggrieved is equally applicable in admiralty law as it is in the common law. (The term common law is used throughout this article to describe the body of law extant in this country exclusive of the admiralty field, a definition which, though not quite accurate, is reasonably expedient for the purpose here.) However, its implementation in admiralty has differed somewhat from the common law for the following reasons: It has been evolved slowly and by minute First, admiralty law is ancient. increment since man first ventured upon the surface of the sea with his person and his goods. At one time scholars opined that a Rhodian Code, perhaps dating back to 900 B.C., had been promulgated, but this theory has been repudiated largely by the complete absence of any surviving historical record of such a code.2 However, it is apparent that a body of customary maritime practices did evolve and gain general acceptance among Mediterranean seafarers by the period 3 The earliest 500-300 B.C., when Rhodes was the center of seagoing commerce. surviving reference to a particular Rhodian legal principle dates to the Third Century A.D., when a Roman lawyer named Paulus wrote five books of Sentences. A division of the second book, titled On the Rhodian Law, states: If, for the sake of lightening a ship, a jettison of goods has been made, what has been given for all shall be made up by the contribution of all. (As you will see, this Rhodian law of jettison is a precursor of the distinctive maritime doctrine of general average, discussed later in this article). Other references to Rhodian law appear in Justinians Digests, published in 533 A.D., including the rather noteworthy comment attributed to Roman Emperor Antoninus, when petitioned for relief by one whose shipwreck had been plundered: I am indeed lord of the world, but the law is lord of the sea. This matter must be decided by the maritime law of the Rhodians . . .4 In contrast, the common law of England commenced its development at the time of the Norman invasion. Therefore, it began to exist as we know it about the year 1066 A.D.

2 1 Benedict on Admiralty 2-3 (E. Jhirad, A. Sann, B. Chase & M. Chynsky 7th ed. 1985) [hereinafter cited as 1 Benedict]. 3 See N. Healy & D, Sharpe, Cases and Materials on Admiralty 3 (1974) [hereinafter cited as Healy & Sharpe]. 4 1 Benedict, supra note 2, 3; G. Gilmore & C. Black, The Law of Admiralty 1-2 (2d ed. 1975) [hereinafter cited as Gilmore & Black].

Thus, the concepts upon which admiralty law are based are about 1500 years older than those of the common law. Obviously, custom, practice and statute have modified both systems greatly throughout the years, and, while there are many similarities, differences still exist. Second, admiralty law enjoys a universal character among maritime nations. It is apparent from the mobile nature of its primary subject matter (ships) that, of necessity, there must exist a worldwide similarity in the application of admiralty law by all of the principal maritime nations. This need for universality influenced the development of admiralty law. Admiralty law grew up together with, and in similar fashion to, the ancient law merchant. Early in its evolution, various rules were agreed to by seafarers to facilitate maritime commerce, rules which attained widespread acceptance because of their practicality and, eventually, became enforced as the law among seafaring communities.5 The importance of universality was apparent to the framers of the United States Constitution, who extended Federal judicial power to all cases of admiralty and maritime jurisdiction." 6. The wisdom of providing the Federal Government with the principal power over maritime commerce should be apparent; without it, both domestic and foreign shippers would have been subject to various states laws, to the probable detriment of the nations developing maritime trade. Third, throughout its development, admiralty law deliberately has been treated as a species of law separate and distinct from the common law. In England, admiralty courts existed wholly apart from the general civil courts that entertained non-admiralty actions at law or equity. There and in the United States, judges in admiralty cases applied substantive admiralty law, and would refer to common law principles for guidance only when the dispute at hand could not be resolved by the application of admiralty statutes and the general maritime law (a broad term which has been used to refer to both the admiralty practices generally accepted among the worlds seafaring nations and the particular judicially-developed body of admiralty rules enjoying the force of law within a particular country). Further, the admiralty courts utilized their own set of procedural rules, In the often differing sharply from the procedures in other civil courts. in Admiralty and Maritime United States, a separate set of Rules for Practice 7 and under which a United States Cases, promulgated by the Supreme Court, District Court would transform itself into a court sitting in admiralty, were in effect until July 1, 1966. On that date, the procedural rules for all 5 6 7

Gilmore & Black, supra note 4, 1-3; Healy & Sharpe, supra note 3, 1-2. U.S. Const. art. III, 2. Order of December 6, 1920, 254 U.S. 671.
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civil cases, including those in admiralty, were unified; 8 however, even in this consolidation, certain traditional admiralty practices were retained (for example, unlike the usual civil case, there is no right to a jury trial in an admiralty action unless such a right is specifically granted by statute 9). Furthermore, supplemental rules governing the procedures in particular types of admiralty cases were appended to the new unified rules.10 Thus, the separate character of admiralty law, both substantively and procedurally, has been fostered historically and is largely preserved in modern practice. II. A. SOME COMPARISONS OF ADMIRALTY LAW AND COMMON LAW Comparative Fault Assume the following situations: (1) Your automobile, being operated negligently upon a highway, is struck by a truck, also being driven in a negligent manner by its owner. (2) Your steam vessel, being operated negligently in a navigable channel, is struck by a tugboat, also being operated in a negligent manner by its master. In each situation, you seek to recover money damages from the other party, whose negligence was indisputably the primary cause of the particular collision. How does your own negligence affect your case? The answer, at least until recently, was quite different in the common law case, situation (l), compared to the result in the admiralty case, situation (2). Under the common law doctrine of contributory negligence, first announced in England in 180911 and adopted in the United States shortly thereafter, 12 any negligence of the plaintiff which contributed to the occurrence will be a complete bar to the plaintiffs recovery. This result occurs even though the plaintiffs negligence is slight compared to that of the defendant. Admiralty law has never followed the common law doctrine of contributory negligence. For centuries, admiralty followed a Rule of Divided Damages which required that property damage be divided equally whenever both parties

8 Order of February 28, 1966, 383 U.S. 1031. 9 Fed. R. Civ. P. 38(e). 10 Fed. R. Civ. P. Supplemental Rules for Certain Claims. 11 Butterfield v. Forrester, 11 East 60, 103 Eng. 12 Smith v. Smith, 19 Mass. (2 Pick.) 621 (1824), first American case. W. Presser, The Law of Torts 416 Am. Jur. 2d Negligence 290 (1971).
4

Admiralty and Maritime Rep. 926 (1809). is regarded as the n. 1 (4th ed. 1971); 57

contributed by their fault to the collision, regardless of the relative degree of each partys fault. This rule traces back to Article XIV of the Rules of Oleron, a medieval maritime code promulgated in about 1150 A.D.13 The rule, adopted in the United States in the case The Schooner CATHERINE v. Dickinson, 14 was grounded in the notion that equal division of damages was just and equitable, and . . , best [tended] to induce care and vigilance on both sides, in the navigation.15 In 1974, in the case of United States v. Reliable Transfer Co., 16 the Supreme Court agreed with numerous commentators that the Rule of Divided Noting Damages was illogical, arbitrary, archaic and frequently unjust.17 that virtually all maritime nations applied a Rule of Proportional Damages the court adopted such a rule: We hold that when two or more parties have contributed by their fault to cause property damage in a maritime collision or stranding, liability for such damage is to be allocated among the parties proportionately to the comparative degree of their fault...18 This rule has been extended to all cases of property damage and personal injury arising from every kind of admiralty incident. Interestingly, many, although not all, states have abandoned the common law doctrine of contributory negligence, recognizing its harshness, in favor In those jurisdictions, therefore, the of a system of comparative fault. results in the two aforementioned situations might now be quite similar. B. The Maritime Lien19

There are a few instances at common law in which a person may acquire a right to retain an article in his possession and look to the article for payment of a fee or other charge. For example, a warehouseman who stores goods may retain the goods until the storage charge is paid, and if the charge In order to exercise is not paid he may sell the goods to satisfy his claim. If he his lien, however, the warehouseman must have possession of the goods. surrenders possession, he loses his common law lien.

13 14 15 16 17 l8 19

1 Benedict, supra note 2, 6. 58 U.S. 170 (1854). Id., at 177-78. 421 U.S. 397 (1974). Id., at 404. Id., at 411. See Gilmore & Black, supra note 4, Ch. IX.
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The maritime lien is quite different and gives extensive and flexible rights. This is because admiralty law looks upon a ship as a legal person with definite and personal needs. It requires food, servants, equipment, and many things to enable it to carry out the purpose for which it was created-- navigation. Generally speaking, to all who assist it, the ship itself may become liable-- liable in rem (that is, the thing is liable, as distinguished from the liability of the owner or of some other person) --for services they have rendered. Thus, those who furnish it with supplies, fuel, towage, and many other things have a lien against the ship itself for their compensation. They may hold the ship and even sell it to satisfy their claims. Unlike the common law lien, the maritime lien is not dependent upon the lienors possession. The lien follows the ship wherever it goes or into whosoevers possession it may come --even into the hands of a bona fide A maritime lien may be divested only by sale under a decree of an purchaser. admiralty court in a proceeding against the ship itself--that is, in a proceeding in rem. When questions of priority within classes of lien holders arise, the liens take priority in the inverse order in which they were incurred. The theory behind this rule is that what was last done for the benefit of the ship was for the benefit of all concerned, including the holders of earlier liens. So the latest lien will defeat prior liens when the liens are in competition with each other. There is another reason for the peculiarities of the maritime lien. A ship by its very nature travels about and often finds itself in strange places It is a great help to the ship in securing its and in need of assistance. needs if the supplier knows he will acquire a lien which he will not lose when the ship departs and which will take precedence over other liens with which the ship may have been previously encumbered. C. Salvage

The law of maritime salvage is another instance in which there is divergence between admiralty law and common law. If your neighbors house catches fire and you voluntarily go to the rescue, and spend great effort and incur grave personal risk in saving his property and extinguishing the fire, he is under no legal obligation to pay for your services. The Good Samaritan acquires no rights at common law. The law of admiralty has a different concept. If a ship breaks down at sea or catches on fire, a volunteer who tows the ship to port or extinguishes the fire is entitled to a reward for his successful salvage services. A salvor acquires a lien upon the ship to the extent an admiralty court decides is appropriate for the services rendered.
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For purposes of determining an appropriate salvage award, the court will evaluate these six elements: the degree of danger from which the property is rescued, the value of the property salved, the risk incurred by the salvers, the salvers promptitude and skill, the value of the property employed by the salvers and the danger to which such property was exposed, and the time and labor expended by the salvers in effecting the rescue.20 Of these six elements, the most important (and the one engendering the most lawyer debate and judicial discussion) is the value of the property salved, measured as of the completion of the salvage. For a ship, this is ordinarily accomplished by estimating the vessels sound value (i.e., its value before the collision or other occurrence resulting in the damage) and then deducting from that amount the cost of necessary repairs. Because the judges determination of the award is highly subjective, the award in any one case has only limited precedential value for future cases. One respected admiralty text draws this succinct conclusion regarding salvage awards: Eventually, the trial judge will pull an arbitrary figure out of the air. 21 However, a survey of 25 salvage awards reported in the American Maritime Cases Table of Salvage Awards between 1963 and 1982 revealed the following statistics: the high award was 50 percent of the value of the salved vessel; the low award was less than 1 percent; the average award was 11.9 percent; the median (13th) award was 6.2 percent; and the majority of the awards fell in the range between 1.2 percent and 14 percent. Salvage awards are categorized as high order, medium order, and low order, based primarily on the dangers faced by and the skill and ingenuity required of the salvage crew in effecting the rescue.22 As might be expected, a judge would tend to be more generous in high order cases, and more parsimonious in low order cases. The 50 percent award referred to above was the high order salvage of the Coast Guard vessel INVINCIBLE, then entirely impotent and in extreme peril off the Oregon Coast after being struck by a sneak wave during violent weather. The salving vessel was the small fishing boat BARBARA ANN, which left its safe position and proceeded to INVINCIBLE to render aid. The heroic efforts of BARBARA ANN enabled the larger Coast Guard vessel to hang on until additional assistance arrived. Unfortunately, the exceptionally heavy sea caused the loss of BARBARA ANN and two of its crew during the salvage process. Under these circumstances, it is not at all surprising that a generous award would be made to the owner of BARBARA ANN, the estates of its two deceased crewmembers, and the one surviving member of its crew.23

20 21 22 23

The BLACKWALL, 77 U.S. 1 (1896). Gilmore & Black, supra note 4, at 563. Id., 8-9, 8-10. BARBARA LEE-INVINCIBLE, 229 F. Supp. 241 (D. Ore. 1963).
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In contrast, the low order salvage cases are characterized by "the simplicity of the operation, its short duration, the relative ease of accomplishment, and the minimal risk to both the salved and the salving vessels." 24 In Vernicos, the USS ALTAIR (AKS-32) and USS MERCURY (AKS-20), nested together in St. Georges Bay, Piraeus, Greece, broke free from the quay during a sudden and violent squall. The vessels radioed for assistance and checked their drift by use of their anchors. The Vernicos salvage tugs arrived about an hour after the storm had passed and, in calm weather, returned the naval vessels to their berth. The salvage award was less than 1 percent of the value of the salved vessels. The law of maritime salvage is not limited to the salvage of a ship in distress, but may apply in any case of the rescue of anothers property from peril at sea. Thus, the Navy has paid awards for claims made for the salvage In one of a seaborne powered target, a torpedo, and a communications buoy. recent case, an award of $400,000 was paid to the owners and crew of a French merchant vessel on which a disabled Navy helicopter made an emergency landing at sea. The helicopter could not have made it back to its ship; but for the fortuitous presence of the merchant vessel, the helicopter would have been lost at sea. Aircraft in peril at sea are considered to be maritime objects subject to the law of salvage.25 The Navys award represented about 5 percent of the value of the helicopter. Finally, it should be noted that only successful salvage is entitled to a If the vessel or other property is not saved, there can be no salvage award. reward, regardless of the heroic efforts of those who attempted the salvage. Furthermore, in accordance with longstanding tradition, there is no reward when the only thing salved is human life; however, a salver of life is entitled to an award from the value of any property concurrently salved. The law of salvage is a by-product of the unwritten law of the sea which required that assistance be rendered to those in distress. Life at sea is still dangerous and a ship in distress desperately needs assistance from others. The property in peril is usually of substantial value and human lives It is well, therefore, that the unwritten law of the sea often are involved. exists and that assistance will be prompted by the fact that a salver has a legal right of compensation as well as a moral duty to respond. D. General Average26

The doctrine of general average in maritime law has no counterpart at common law. As previously mentioned, it derives from the ancient Rhodian law of jettison. 24 1963). 25 26

Vernicos Shipping Co. v. United States, 223 F. Supp. 116 (S.D.N.Y. Lambros Seaplane Base v. M/S BATORY, 215 F.2d 228 (2d Cir. 1954). See Gilmore & Black, supra note 4, Ch. V.
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This doctrine is based upon the concept that a ships voyage is a joint venture among the various participating interests, vessel and cargo, who place property at risk in undertaking the voyage. The vessel interest is the value of the vessel itself and the value of any freight (i.e., the compensation which the vessel owner is to receive for carrying the cargo) due at the conclusion of the voyage; during the voyage, these properties are at risk because of the perils and uncertainty attending sea travel. The cargo interest is the value of the cargo being carried; it, too, is at risk during the voyage. Of course, since there may be many merchants shipping cargo on a single vessel, the voyage may have more than one cargo interest. A general average situation arises when the property at risk in a voyage comes into a position of peril, and a consequent voluntary sacrifice of a portion of that property is made for the purpose of preserving the remainder from the peril. Typically, such a situation arises when a vessel master orders that some cargo be jettisoned to save the ship and the remaining cargo, or that a portion of the vessel be damaged in order to save the rest, or both. In these cases, the law allows the value of the abandoned cargo, together with any other expenses incurred in saving the vessel, to be subject to general average. Each of the interests involved in the voyage will contribute to the cargo loss and other expenses in the proportion which the value of his interest bears to the total amount of the loss. Thus, no single interest is allowed to succeed at the expense of any other; the merchant whose cargo arrived unscathed will pay a sum to the owner and merchants whose vessel and cargo were sacrificed so the voyage could be completed. Limitation of Liability27

E.

Still another unusual provision of admiralty law is the one under which a shipowner may, in certain situations, limit his liability against claims to the value of his ship immediately after the accident. There are, of course, certain circumstances at common law in which a persons liability is limited. The liability of a stockholder in most corporations is limited to the extent of his holdings, and the liability of a bankrupt person is limited to the value of his assets. But the common law generally is wary of permitting persons to insulate themselves from liability for their acts.

27

See Id. Ch. X.

9

The rule permitting limitation of the shipowners liability in admiralty came about in the United States by statute passed in 1851.28 The doctrine had been a part of the admiralty law of most maritime nations for many years before that date. The incentive which prompted the legislation was the desire by the United States to encourage the investment of capital in shipping enterprises. It was urged in support of this legislation that a shipowner cannot control his vessel to the same degree that the owner of a factory ashore can control his plant. [B]ecause of the extraordinary hazards of seaborne commerce and because the owner can exercise only nominal control over his servants once the ship has broken ground for the voyage, the owner should be entitled to exoneration from liability, or at least to a limitation of liability, for whatever happens after the ship has passed beyond his effective control. Contrariwise, he should be held to liability for all loss from his failure to exercise effective control when he had the chance. 29 Therefore, if a shipowner was not in privity with the act causing the loss, damage or injury, the owner could, in good conscience, limit his liability to the value of the vessel immediately after the accident, even though this value may be only scrap value,30 or the value of a single 32 lifeboat, 31 or nothing at all. Such was the law for several years until the MORRO CASTLE disaster. The MORRO CASTLE, a passenger ship, caught fire while bound from Havana to New York. She was beached on the New Jersey coast. One hundred and thirtyfive lives were lost and serious injuries were sustained by many of the survivors. The ship had been completely gutted by fire and had only scrap value. The shipowner could, of course, limit his liability to that value. The consequence was that those who suffered serious injury and the next of kin of the dead received practically no compensation.

28 Limitation of Shipowners Liability Act, 46 U.S.C. 181-196 (1982). 29 Gilmore & Black, supra note 4, 10-20. 30 For example, a badly damaged vessel thrown onto the beach during a storm may have only scrap value. 31 This was the situation in the American limitation proceeding which followed the stranding and sinking of the oil tanker TORREY CANYON off the southwest coast of England; the value of the lone salvaged lifeboat was $50. In re Barracuda Tanker Corp., 281 F. Supp. 228 (S.D.N.Y. 1968). 32 For example, when the ship sinks and nothing is salvaged.
10

The unfairness of this situation led Congress, in 1935, to amend the law so as to require, in those cases where the ships value after the accident was insufficient to care for all claims and the fund portion available for paying personal injury and death losses was less than $60 per ton for that ships tonnage, that the personal injury/death portion of the limitation fund be increased by a sum equal to $60 per ton --this additional amount to be available solely for distribution to death and personal injury claimants.33 It should be noted that a limitation fund established or supplemented as a consequence of this statute does not benefit claimants seeking recovery for property damage. In 1984 the statute was again amended, this time increasing the limitation fund sum for death and personal injury claimants to $420 per ton, 34 The tonnage to be used in all cases is the gross tonnage of a motor vessel or the registered tonnage of a sailing vessel.

III.

ADMIRALTY JURISDICTION IN THE UNITED STATES

A.

Generally

The term jurisdiction may be defined as the power of a court to hear and decide a particular case or class of cases. Most of the cases that arise in admiralty concern disputes involving maritime contracts or allegations of admiralty torts (a tort is a civil wrong, independent of contract, for which the victim may be entitled to money damages or other relief), and the power to decide these cases is spread among federal and state courts. As mentioned earlier, in Article III of the United States Constitution it is specified that the federal judicial power includes the power to decide admiralty cases. Therefore, any case which truly arises in admiralty may be brought for decision to an appropriate United States District Court.35 However, federal jurisdiction is not exclusive in admiralty matters, and some types of admiralty cases may be brought in state courts. Two types of suits exist in admiralty: an action in personam and an action in rem. The action in rem, previously discussed in the section on the In the United maritime lien, is a suit brought against the ship itself. States, all actions in rem must be brought in an appropriate United States District Court; there is no option to bring such a suit in a state court. 36 33 49 Stat. 960 (1935). 34 46 U.S.C. 183(b) (Supp. II 1984). 35 28 U.S.C. 1333 (1982). 36 The MOSES TAYLOR, 71 U.S. (4 Wall.) 411 (1867); The HINE v. Trevort 71 U.S. (4 Wall.) 555 (1867).
11

An action in personam is one brought against a named natural person or corporation. An action in personam which arises in a maritime setting may be brought in an appropriate United States District Court as an admiralty action. Alternatively, the plaintiff may elect to bring the case in an appropriate federal court as an ordinary, non-admiralty, civil action (if other requirements for obtaining federal jurisdiction over the matter are satisfied), or in an appropriate state court as an ordinary civil actions.37 However, certain admiralty actions in personam may be limited by statute to a particular court; for example, an admiralty suit against the United States must be brought only in a United States District Court.38 B. Cases: Maritime Contracts

Admiralty jurisdiction includes cases arising from contracts of a maritime No precise definition has been formulated for the term of a character. maritime character. Generally, any contract to provide goods and services directly to a vessel for the purpose of furthering the vessels navigation and operation is considered maritime in character; thus, the seamans contract of employment is maritime, as is a contract to insure, tow, pilot, load or unload a vessel. Other common maritime contracts are ocean bills of lading, charter parties (contracts to lease vessels), and ship repair contracts.39 Interestingly, a contract to build a ship is not considered maritime. 40 This longstanding principle was grounded in the idea that a vessel did not come into existence until its launching; accordingly, anything occurring before the vessels launching was not properly in admiralty.41 C. Cases: Admiralty Torts

The traditional American Rule for determining which torts were admiralty torts was one of locality: if the wrong complained of occurred upon navigable waters, the tort was within the admiralty jurisdiction.42 For most of the tort cases brought before the admiralty side of the federal courts (seamans 37 Madruga v. Superior Court of San Diego County, California, 346 U.S. 556 (1954). 38 Suits in Admiralty Act, 46 U.S.C. 741-752 (1982). 39 Gilmore & Black, supra note 4, 1-10. 40 Northern Pacific Steamship Co. v. Hall Brothers Co., 249 U.S. 119 (1919). 41 A ship is born when she is launched, and lives so long as her identity is preserved. Prior to her launching she is a mere congeries of wood and iron--an ordinary piece of personal property--as distinctly a land structure as a house... In the baptism of launching she receives her name, and from the moment her keel touches the water she is transformed, and becomes a subject of admiralty jurisdiction. Tucker v. Alexandroff, 183 U.S. 424, 438 (1901). 42 The PLYMOUTH, 70 U.S. 20 (1866).
12

injuries, passenger and other visitor injuries, and ship collisions), there was no doubt that the cases were properly and logically admiralty matters. However, carrying the locality rule to its logical extreme, an assault (an intentional tort) by one swimmer on another swimmer in a navigable lake or river was cognizable in admiralty, notwithstanding that the tort had no connection whatsoever to the navigation of vessels or the business of carrying goods and passengers over water. The American Rule was modified in the case of Executive Jet Aviation, Inc. v. City of Cleveland, Ohio. 43 In that case, a small jet taking off from Burke Lakefront Airport in Cleveland, bound for Portland, Maine, struck a flock of seagulls, causing the plane to crash into the navigable waters of Lake Erie. The company sought damages for the loss of the airplane from the owner/operator of the airport and certain persons employed there. Rejecting a pure locality test, the Supreme Court decided there was no admiralty jurisdiction by applying a test of locality plus a maritime nexus: [T]he mere fact that the alleged wrong occurs or is located on or over navigable waters. . . is not of itself sufficient. . . It is. . . require[d] also that the wrong bear a significant relationship to traditional maritime activity. 44 While a transoceanic passenger flight arguably bears a significant relationship to traditional maritime activity because it performs a function traditionally accomplished by a ship, a flight between two points in the continental United States does not demonstrate this linkage; thus, the case was dismissed. In a subsequent case, the court ruled that the phrase traditional maritime activity was not restricted to maritime commerce, and sustained admiralty jurisdiction over a tort lawsuit arising from the collision of two pleasure boats on a navigable river in Louisiana. 45 Another thorny problem with determining which torts were within admiralty was addressed by Congress with the passage of the Admiralty Jurisdiction Extension Act.46 This statute extended admiralty jurisdiction to situations in which a tort is caused by a vessel on navigable waters but the damage or injury is consummated on land; examples would include a heaving line being negligently thrown from a vessel to a quay and striking a bystander or the windshield of a car, and a vessel negligently alliding with a wharf or pier (traditionally viewed as an extension of the land).

43 44 45 46

409 U.S. 249 (1972). Id. at 268. Foremost Insurance Co. v. Richardson, 46 U.S.C. 740 (1982).
13

457 U.S. 668 (1982).

IV.

ADMIRALTY SUITS BY OR AGAINST THE UNITED STATES

There has never been any difficulty about the Government bringing suit against others in admiralty matters; however, at one time private persons had no legal remedy against the United States for damages caused by Government vessels. This was the result of the doctrine of sovereign immunity which the United States inherited from Great Britain. Under this doctrine the King can do no wrong. As the Government had not given its consent to be sued in admiralty cases, the natural consequence of this lack of a judicial remedy was that Congress was burdened with numerous bills for the relief of private persons who had been injured by the negligent operation of Government vessels. In 1920 Congress passed the Suits in Admiralty Act,47 which provided that, while Government merchant vessels would be exempt from seizure or arrest, an action in personam could be filed against the Government for any case in which a like proceeding in admiralty could be maintained if the Government vessel were, instead, privately owned. The Suits in Admiralty Act covered only merchant vessels of the United States and there was still no waiver of sovereign immunity with respect to public vessels. All naval vessels are public vessels of the United States. The Act which governs suits against the United States for damage caused by its public vessels is the Public Vessels Act.48 This 1925 statute permits an action in personam to be brought in admiralty against the United States for damages caused by public vessels. Like Government merchant vessels, public vessels of the United States are exempt from seizure or arrest. The net result is that Government vessels of all kinds, public and merchant, are now subject to similar liabilities as commercial vessels, with the exception that arrest, seizure, or the existence of a maritime lien against a Government vessel is not allowed. The personal credit of the United States is substituted for the security which arrest or a lien affords.

v.

ADMINISTRATIVE SETTLEMENT OF ADMIRALTY CLAIMS

While the Public Vessels Act allowed suit against the Government for damages caused by a naval vessel, it made no provision to enable the Department of the Navy to settle these cases administratively,

47 48

46 U.S.C. 741-752 (1982). 46 U.S.C. 781-790 (1982).

14

Prior to 1944, the Navy had a very restricted authority to settle admiralty claims administratively. Settlement could be accomplished only if the claim did not exceed $3,000. This was useless in settling anything other than very minor claims. Hence, most of the Navys admiralty business was placed into litigation where it was either settled by the Department of Justice or actually tried in the federal courts. The great increase of naval activity in World War II, with the resultant increase of admiralty business, induced Congress in 1944 to authorize the Secretary of the Navy to settle admiralty claims against the United States in amounts up to and including $1,000,000. 49 The Secretary was granted corresponding authority to settle the Governments claims for damage to naval property caused by vessels or floating objects. 5O The authority and procedures for the administrative settlement of admiralty claims are discussed in detail in Parts C and D ( 1212-1224) of the Navy Manual of the Judge Advocate General, Chapter XII, which follows this article in the course book. The remainder of this article presents a brief discussion of the substantive law which is applied by the adjudicating attorney (or by the trial judge) in evaluating an admiralty claim (or in deciding a lawsuit).

VI. A.

PERSONAL INJURY CLAIMS Proper Claimants

Under the Public Vessels Act, the United States may be held liable for damages caused by a public vessel of the United States.51 Early cases interpreting that phrase concluded that relief was appropriate only in those cases involving property damage. However, in American Stevedores, Inc v. Porello, 52 the Supreme Court decided conclusively that, under the Act, the United States could be held liable for personal injuries occurring on public vessels. Of course, a wide variety of persons may suffer injuries while onboard a naval vessel, and not every such victim is entitled to relief under the Public Vessels Act. As far back as 1928, a Federal Appeals Court reasoned that the system of benefits provided by the Government indicated a congressional intent not to permit suits by naval personnel for death or injuries sustained on a 49 found at 50 found at 51 52

58 Stat. 726 (1944); the current codification of this authority is 10 U.S.C. 7622 (1982). 59 Stat. 596 (1945); the current codification of this authority is 10 U.S.C. 7623 (1982). 46 U.S.C. 781 (1982). 330 U.S. 446 (1947).
15

public vessel.53 Under the well-known doctrine of Feres v. United States, 54 the United States may not be held liable for injuries to servicemembers which occur incident to their service. This doctrine has been extended to cases arising in admiralty under the Public Vessels Act.55 Because the payment of an administrative claim is permitted only in cases in which the legal liability of the United States would be the probable outcome of litigation, this doctrine bars payment of administrative claims seeking money damages for injuries sustained by servicemembers incident to service on naval vessels. Similarly, civil service officers and seamen who man Military Sealift Command (MSC) vessels cannot maintain suit against the United States for personal injuries suffered thereon. These persons are, of course, employees of the United States, and as such are limited to the benefits and remedies prescribed in the Federal Employees Compensation Act. 56 Their rights, therefore, are substantially different from the merchant seamen who man MSC vessels operated by private contractors pursuant to contracts with MSC. These individuals enjoy the usual rights of merchant seamen in case of injury or illness, including the right to bring suit against their employer for wages, maintenance and cure, and compensation for personal injury, Although the United States is not the direct employer of these individuals, it has been determined that the United States, as shipowner, is a proper defendant in such a personal injury actions.57 Generally, the injured party in the admiralty claims adjudicated by the Navy will fit into one of two broad categories: shoreworker (a person onboard the naval vessel to accomplish work pursuant to a contract between the Navy and a civilian firm) and ships visitor (a person onboard the naval vessel for any other reason, including general visitors, special tour guests, salesmen, and individual crewmember guests). B. Visitor Injury Cases

Liability of the United States in a visitor injury case occurs when the Government fails in its duty, as a shipowner, to exercise reasonable care to provide for the safety of the visitor.58 Application of the Kermarec standard to Navy ships has been judicially recognized. 59 An identical standard is explicitly set forth in Article 0714(3), United States Navy Regulations, 1973, 53 S 51 - CITY OF ROME, 27 F.2d 807 (2nd Cir. 1928). 54 340 Us. 135 (1950). 55 Charland v. United States, 615 F.2d 508 (9th Cir, 1980); Beaucoudray v. United States, 490 F.2d 86 (5th Cir. 1974), 56 5 U.S.C. 8101-8150 (1982); Johansen v. United States, 343 U.S. 427 (1952). 57 ELNA II - MISSION SAN FRANCISCO, 289 F.2d 237 (3d Cir. 1966). 58 Kermarec v. Compagnie Generale Transatlantique, 385 U.S. 625 (1959). 59 Cobb v. United States, 1979 A.M.C. 1375 (M.D. Fla. 1979); Sherman v. United States, 283 F. Supp. 269 (E.D. Wise. 1968).
16

which requires . . . reasonable care to protect the persons and property of visitors. The following cases provide examples of how the United States, through the actions or inaction of naval personnel, breached this duty and, accordingly, paid damages to the injured victims: (1) The aft brow of USS STARK (FFG 31) collapsed during public visiting hours in Chicago, causing serious injuries to two elderly women who were on the brow at the time of its collapse. Crewmembers on USS STARK had been negligent in utilizing an undersized platform on which to rest the pierside end of the brow, in failing to rig safety chains or some other apparatus that might have prevented the collapse, and in failing to inspect the aft brow for susceptibility to collapse when the forward brow (which was mounted on a platform twice as large) was noted to be in danger of rolling off its platform shortly before the aft brow rolled off its platform. A total of $200,900 was paid to the two claimants in settlement of their claims. (2) An elderly gentleman, attending a change of command ceremony onboard USS RANGER (CV 61), tripped at an uneven place in the deck (a lip ranging from 2 to 3 3/4 inches at the aircraft elevator number one door well). He fell, struck his face on the nonskid deck, and sustained serious facial injuries. Crewmembers were negligent in failing to correct the uneven deck at the aircraft elevator number one door well. Alternatively, if the condition was not correctable, they were negligent in failing to erect a rope barrier or to mark the hazard with yellow caution stripes or other peculiar markings so the lip in the deck would not blend in with the rest of the dark gray deck. The Navy paid the claim for the victims medical expenses. (3) The mother of a USS AMERICA (CV 66) crewmember was visiting the vessel after sunset. From the end of the brow it was necessary to step down on two steps and a pallet before arriving on deck. Unlike the brow itself, there was no handrail alongside these final steps to assist the visitor. Furthermore, there were no signs warning of the descending steps, no assistance was offered to the victim by personnel on watch at the quarterdeck, and the quarterdeck area was lighted with only a single 20-watt light (normal lighting of the brow and quarterdeck was burned out or not yet installed). Not surprisingly, the victim misstepped from the brow and fell, breaking her ankle. Ships personnel had not exercised reasonable care for her safety, and the United States paid $15,000 in settlement of her claim. (4) A salesman visiting USS EISENHOWER (CVN 69) slipped and fell in a passageway while being escorted to a supply office. One side of the passageway deck was being stripped of wax at the time, and, because of a slight list by the ship, some rivulets of stripper ran over onto the otherwise dry side of the passageway. The escorting petty officer gave a general warning to watch your step as he preceded the salesman through the passageway, but the salesman slipped on the rivulets of stripper. The crewmembers were negligent

17

in allowing the dry side of the passageway to become dotted with rivulets of the very slick stripper, and in failing to provide a warning which would be adequate to alert the salesman to the nature and extent of the hazard. The Government paid a judgment of over $14,000.60 While a duty is imposed to exercise reasonable care, a shipowner is not an A shipowner will not be held liable for insurer of the safety of visitors.61 unforeseeable injuries; accordingly, the United States was held not liable in Cobb62 (a guest onboard USS MEREDITH (DD 890) was injured when the ship, then 63 (an 11-year underway, was struck by an unforeseen freak wave) and Sherman old boy was pushed out of a gun tub by another boy during public visiting onboard USS PORTAGE (PCE 902)).
64 Furthermore, a shipowner does not guarantee an accident-free ship. Indeed, any shipowner, including the United States, knows that a vessel will, of necessity, have appurtenances, protuberances and structural conditions In determining which may be hazardous to visitors unfamiliar with them. whether the United States has breached its duty of reasonable care when a visitor suffers an injury as a result of a shipboard condition, a court will examine the nature of the particular hazard (is it open and obvious or is it hidden from view) and the nature and extent of warnings given or other measures taken in an attempt to negate the potential for harm. As a general rule, the more open and obvious a hazard is, the less a duty is placed on the shipowner to warn of the hazard and undertake steps to mollify it.

In Esau v. United States, the plaintiff fell after stepping into a 1.5inch deep, 12-inch wide scupper running adjacent to the deck plating of USS CHICAGO (CG 11). The court noted that the condition should have been obvious as it existed along a topside deck during daylight hours, even though it was not painted a contrasting color from the rest of the deck. Furthermore, the ship had taken the following precautions to ensure the safety of Visitors Day guests: posted warning signs to Watch your step and watch your head in a number of places throughout the tour route, verbally instructed visitors at the outset of the tour to exercise care and caution in walking about the ship, and stationed crewmembers throughout the tour route to act as guides and to correct any hazardous conditions brought to their attention. The court decided the United States had not breached any duty to the plaintiff, and 66 dismissed her suit. Likewise, in Owens v. United States, the court denied recovery to a plaintiff who injured himself when leaping from the USS BRUNSWICK (ATS 3) accommodation ladder into the well of the ships motor whale boat, 60 61 62 63 64 65 66

Diaz v. United States, 655 F.Supp. 411 (E.D. Va. 1987). Marshall v. Westfall-Larsen Corp., 259 F.2d 575 (9th Cir. 1958). Supra note 59. Id. Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960). 1979 A.M.C. 736 (S.D. Cal. 1978). Civ. No. 82-0247 (D. Hawaii Mar. 29, 1984).
18

instead of utilizing the available services of three sailors then stationed on the gunwale of the motor whale boat to assist visitors in descending the ladder and boarding the boat. C. Shoreworker Injury Cases

In a general sense, the United States, as a shipowner, owes the shoreworker the same duty of reasonable care to provide for his or her safety as is owed to any visitor to the vessel. Traditional common law distinctions between business invitees and other guests were expressly rejected by the Supreme Court in Kermarec. 67 Notwithstanding this, courts have attempted to define with particularity the duty of a vessel owner to the employees of an independent contractor hired to perform work aboard the vessel, although commentators may differ on whether the more particular standards are clearer than the general standard of reasonable care applicable in ships visitor cases not involving shoreworkers. As an initial matter, shoreworkers have available to them the benefits provided pursuant to the Longshore and Harbor Workers Compensation Act. 68 Under this statute, any firm whose employees are employed, in whole or in part, upon the navigable waters of the United States or on any pier, wharf, terminal or other adjoining area customarily used for loading, unloading, building or repairing a vessel, is obligated to maintain workmens compensation coverage in If an employee is then injured (or specified amounts for its employees.69 killed) in a work related accident, the compensation program is the exclusive remedy of that employee vis a vis his or her employer; 70 the firm is immune from suit, even if the employers negligence, or the negligence of some fellow employee of the same firm, caused the employees injury (or death). However, as against the owner of the vessel on which the employee was working at the time of the accident, the employee may recover if he or she can demonstrate that negligence attributable to the vessel was a proximate cause of the accident. The Supreme Court set forth the duty of a vessel owner to a shoreworker in Scindia Steam Navigation Company, Ltd. v. De Los Santos.72 As a starting point, the duty of exercising reasonable care toward shoreworkers entails having the ship and its equipment in such condition that the experienced shoreworker will be able to come aboard and conduct his or her work with If there are hazards onboard the reasonable safety to persons and property.73 ship which are known to the vessel owner or crew, or which should be known to 67 68 69 70 71 72 73

358 U.S. at 630-32. 33 U.S.C. 901-948a (Supp. II 1984). 33 U.S.C, 904 (Supp. II 1984). 33 U.S.C. 905(a) (Supp. II 1984). 33 U.S.C. 905(b) (Supp. II 1984). 451 U.S. 156 (1981). Id, at 167.
19

them in the exercise of reasonable care, and which are likely to be encountered by the shoreworker, then the vessel owner has the obligation to warn the shoreworker of the hazard.74 Again, as with other ship visitor cases, if the shipboard hazard would be open and obvious to a reasonably competent shoreworker, there is no duty to warn. If a vessel owner fails in this duty to provide a reasonably safe working place, the owner is liable to the shoreworker for resulting injury (or death). Thus, the United States paid the claim of a shoreworker injured in a fall down a steep ladder leading into the fireroom of USS GUADALCANAL (LPH 7), where the worker was engaged in ship repairs. Near the top of the ladder, crewmembers were cleaning a deck with soapy water, through which the worker walked before beginning to descend the ladder. The presence of soapy water on the deck in a well-lighted space arguably would constitute an open and obvious hazard about which there is no duty to warn and against which the competent shoreworker should take precautions, and were that the only alleged negligence recovery might have been denied. However, other crewmembers had been working on the ladder and had cleaned and left bare every other tread of the ladder in anticipation of the application of new nonskid pads. Unfortunately, the new nonskid pads had not yet been applied and no warnings were posted of this unquestionably hazardous condition, which was a proximate cause of the claimants injuries. As a general rule, the vessel owner has no obligation to supervise and inspect the shoreworkers activities for the purpose of discovering dangerous conditions which may develop as a result of those activities. Once the shoreworker is in control of the work space or equipment, the shipowner is entitled to rely on the shoreworkers expertise and duty to care for himself or herself, and if an accident occurs, the shipowner ought not be held liable.75 Of course, the vessel owner could, pursuant to contract provisions, undertake a duty to supervise and inspect shoreworker activities, but this would be unusual as it would markedly increase the shipowners liabiiity exposure. Similarly, the vessel owners liabiiity exposure will be increased if the owner or crewmembers exercise active involvement and control over the independent contractor operations; that is, control over the operative detail and actual methods of work used by the shoreworker, regardless of whether such control is permitted under the terms of the contract.76 The United States frequently reserves the right to approve the quality of a contractors workmanship in competing each item of the contract before accepting that item as conforming to the contract specifications. However, the mere reservation of a right to inspect and approve the work of an independent contractor does not subject the United States to the markediy increased liability exposure mentioned above.77 74 Id. 75 Id. at 172. 76 Taylor v. Moram Agencies, 739 F.2d 1384 (9th Cir. 1984); Cowsert v. Crowley Maritime Corp., 680 P.2d 46 (Wash. 1984). 77 West v. United States, 361 U.S. 118 (1959); Williams v. Fenix & Scisson, Inc., 608 F.2d 1205 (9th Cir. 1979).
20

The Supreme Court in Scindia did create one exception to the general rule that a shipowner has no duty to intervene in a shoreworkers operations: if the owner has actual knowledge of a dangerous condition, and knows that the shoreworker is continuing to work despite the unreasonable risk of harm presented, and cannot reasonably expect that contractor personnel will remedy the situation, then a duty to intervene arises.78 Thus, the Navy paid the claim of a shoreworker who was injured in an explosion onboard USS JUNEAU (LPD 10). The claimant, a welder, and the ships force firewatch assigned to the claimant reported that a temporary exhaust blower in the vicinity of the welding operation was not effectively removing smoke and fumes generated by the hotwork. A safe for hotwork certificate had been posted in the space where the welding operation was ongoing; however, the certificate was a number of days old and no inspection had been conducted by the contractors gas free engineers during the intervening period between the date of the certificate and the date of the explosion, despite a contractual obligation to conduct such inspections. All of these facts were known to members of the ships crew. Under these circumstances, where a hazardous condition existed and continuation of work was obviously improvident, the Navy, as the shipowner, had a duty to intervene. Failing in that duty, the Government was liable to the claimant. In summary, Government liability in shoreworker injury cases may arise when the Government breaches the duty of reasonable care it owes to the shoreworker (1) by failing to provide a reasonably safe place to work, (2) by failing to intervene in shoreworker activities once a dangerous situation is made known to the shipowner (and other conditions necessary to create a duty to intervene are present), or (3) by failing to inspect and discover hazardous situations if a duty of inspection and supervision exists because of contract provisions or active involvement and control in the contractors operations.

VII.

PROPERTY DAMAGE:

ALLISION CLAIMS

Perhaps the most common property damage claim in admiralty is the allision claim. An allision occurs when a moving vessel strikes a stationary vessel or structure. Not unexpectedly, the law applied in such cases is weighted heavily in favor of the stationary vessel or structure; a presumption of fault on the part of the moving vessel exists when an allision occurs. 79 To rebut this presumption, the moving vessel must show that it was faultless, or that the allision was occasioned primarily through the fault of the stationary object or was the result of inevitable accident. 80

78 451 U.S. at 175-176. 79 The OREGON, 158 U.S. 186 (1895). 80 Carr v. Hermosa Amusement Corp., cert. denied 321 U.S. 764 (1944). 21

137 F.2d 983 (9th Cir. 1943),

The Navy routinely handles numerous allision claims, both by and against the United States, in cases involving moving vessels striking piers, bridges, buoys, and other vessels which are anchored or moored. For example, USS JOHN HANCOCK (DD 981) allided with a buoy in the approaches to the Humber River, England, causing severe damage to the buoy. A presumption of fault existed on the part of the ship, so the adjudication of the claim focused on possible evidence which might rebut the presumption. The allision occurred during clear visibility approximately one hour after sunrise, and the buoys lights had been properly working in the twilight period before sunrise (when lookouts initially spotted the buoy visually), so it could hardly be said that the allision was primarily due to fault on the part of the structure. The ship was contending with a 25 knot wind, virtually perpendicular to her intended track, which was causing the vessel to be set toward the left side of the channel, but the otherwise satisfactory weather conditions were not so severe or unusual as to constitute a force majeure or an Act of God that might have exonerated the vessel and rendered the occurrence an accident. In short, the ship had ample time, power and clear water to pass the buoy safely in the channel (upwind of the buoy) or, if the set made it apparent that a successful upwind passage was unlikely, then to pass the buoy downwind and regain the channel following the passage. Since no evidence existed to exculpate the ship, the presumption of fault remained intact and the Navy paid the claim for the damaged buoy.

VIII.

PROPERTY DAMAGE:

COLLISION CLAIMS

A collision occurs when a moving vessel strikes another moving vessel. It is unusual for a major collision case (thankfully, a rather infrequent occurrence) to be settled completely via the administrative claims process, but minor collisions are often settled through a claim by or against the United States. In analyzing a collision occurring outside the inland waters of the United States, the primary law applied will be the International Regulations for Preventing Collisions at Sea, 1972 (commonly called 72 COLREGS). 72 COLREGS

22

were developed by the Inter-Governmental Maritime Consultative Organization (now known as the International Maritime Organization) and were formalized in an international convention which was ratified by the United States.81 All U.S. flag vessels are obligated to comply with these rules,82 and the failure to do so may subject the vessel operator to a fine.83 72 COLREGS are strictly construed in admiralty courts. 84 Similarly, in analyzing a collision occurring within the inland waters of the United States, the primary law applied will be the Inland Navigation Rules, 1980 (Inland Rules), which were enacted in the Inland Navigational Rules Act of 1980.85 These rules consolidated and replaced the old Inland Rules, Western River Rules, Great Lakes Rules, their respective pilot rules and interpretive rules, and parts of the Motorboat Act of 1940. These old navigation rules, many of which were enacted in the 19th century, formed a confusing patchwork of requirements that was simplified by the new Inland Rules. Like the 72 COLREGS, the Inland Rules are strictly construed in admiralty courts and compliance is mandatory. The vessel operator who fails to adhere to these rules is liable for a civil penalty in the form of a fine not to exceed $5,000 for each violation. 86 You may recall from earlier in this article that when two or more ships contribute by their fault to a collision, liability for the consequent damage is allocated proportionately according to the relative fault of each vessel. 87 Predictably, the Steering and Sailing Rules found in Part B of both 72 COLREGS and the Inland Rules provide the most guidance in evaluating the respective It would be unusual, although not liabilities of the vessels involved. impossible, to have a major collision occur in which one of the vessels was absolved of any responsibility whatsoever for its occurrence. This is because of the usual presence of at least some violation of the navigation rules, even though a minor one, and the application of the PENNSYLVANIA Rule, first announced by the Supreme Court in SS PENNSYLVANIA v. Troop.88 Under this 81 33 U.S.C. foil. 1602 (1982). The Convention on the International Regulations for Preventing Collisions at Sea, 1972, was proclaimed by the President on January 19, 1977. The proclamation provided that the International Regulations would enter into force for the United States on July 15, 1977. See also 33 U.S.C. 1601-1608 (1982). 82 33 U.S.C. 1603 (1982). 83 33 U.S.C. 1608 (1982). 84 Gilmore & Black, supra note 4, 7-3. 85 33 U.S.C. 2001-2073 (1982). 86 33 U.S.C. 2072 (1982). 87 U.S. v. Reliable Transfer Co., 421 U.S. 397 (1975). 88 86 U.S. 125 (1874).

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doctrine, a vessel, having violated a navigation rule, has the burden of proving not only that the particular violation was not a contributing cause of the incident, but also that the violation could not have been a contributing cause. Because it is extremely difficult to prove that a violation, even a minor one, could not have contributed in any way to the collision, complete exoneration is rare. An example of a collision in which the U.S. Navy vessel was completely exonerated occurred when USS DAHLGREN (DDG 43) collided with the freighter EURYBATES in the Caribbean Sea near the entrance to the Panama Canal. USS DAHLGREN was leading a column of naval ships on a generally southwesterly course, and EURYBATES, on a northerly course, had USS DAHLGREN to its starboard, creating a crossing situation in which USS DAHLGREN was the privileged vessel. Applying the navigation rules in effect then (which were identical in pertinent part to 72 COLREGS), EURYBATES, as the burdened vessel, was obligated to keep out of USS DAHLGRENs way, to avoid crossing ahead of the naval ship, and to take positive early action to lessen the risk of collision. 89 In addition to failing to abide by these obligations, EURYBATES also failed to maintain a proper and vigilant lookout.90 USS DAHLGREN correctly maintained course and speed91 until a sudden and late turn by EURYBATES caused the freighter to cross close ahead of the naval ship. At that point, USS DAHLGRENs evasive actions could not avoid the collision. Despite allegations to the contrary by EURYBATES, the trial court specifically found that USS DAHLGREN had maintained a proper and vigilant lookout, both visually and with radar, had shown proper navigational lights, and had acted correctly under the relevant steering and sailing rules; the court ruled that EURYBATES was entirely responsible for the collision. 92 Of course, in a collision interests other than the respective vessel owners may suffer losses. For example, cargo may be damaged, either directly as a result of the collision or as a result of being jettisoned during efforts to save the vessel and remaining cargo. The cargo owners are innocent victims of the incident when they suffer such losses. The rule regarding liability to an innocent cargo interest is as follows: if the non-carrying vessel is at all responsible for causing the collision, that vessel is liable to the cargo interest for all of its losses. This applies even though its negligence is slight compared to that of the cargo-carrying vessel.93 This rule avoids the situation in which a cargo owner would be placed in an adversarial position vis a vis the carrier of his goods. The non-carrying vessel then can seek to recoup from the cargo-carrying vessel all or a portion of any amount paid to the cargo interest, in accordance with the relative degree of fault of the 89 Rules 15 and 16, 72 COLREGS. 90 Rule 5, 72 COLREGS. 91 Rule 17, 72 COLREGS. 92 in the Matter of TA CHI Navigation (Panama} Corp., 512 F. Supp, 148 (E.D. La. 1980), 93 The ATLAS, 93 U.S. 302 (1876).
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cargo-carrying vessel.94 In the USS DAHLGREN - EURYBATES case, the United States, apparently believing that it would be found partially liable for the collision at trial, paid a claim of over $600,000 to the owners of the cargo damaged onboard EURYBATES. When It was determined at trial that EURYBATES was solely responsible for the collision, a judgment was rendered in favor of the United States for that entire amount.95

IX.

PROPERTY DAMAGE:

OTHER CLAIMS

Any loss, damage or destruction of property, afloat or ashore, which occurs incident to the operation of a naval vessel, may result in an admiralty claim against the United States. Similarly, any damage caused to Navy property by a privately-owned vessel or floating object may result in an affirmative claim by the Government against the offender. The Navy processes admiralty claims for property damage resulting from a wide variety of incidents other than allisions and collisions, but the most common are claims arising from damage to fishing nets or lines and claims arising from wake damage. A. Net Damage Cases

Traditionally, fishermen have been recognized as favored in admiralty and their economic interests receive the fullest possible legal protection. 96 When a fisherman suffers damage to fishing lines or nets as a result of anothers negligence, he may recover from the offending party not only the cost of repairing or replacing the the damaged or destroyed property but also the estimated value of his lost or diminished catch. Naval vessels that become involved in net damage cases include ships, small boats and amphibious vehicles; amphibious landing operations seem to be a particularly fertile source of these claims, with the damage being caused both by landing craft and by special operations personnel. Provisions of 72 COLREGS or the Inland Rules usually apply in these cases, particularly Part C (Lights and Shapes), Rule 5 (maintaining a proper lookout), Rules 9 and 10 (concerning the privileges of a vessel operating in a narrow channel or in accordance with a traffic separation plan, and the obligation of fishing vessels not to impede the use of the channel), and Rule 18 (responsibilities between vessels when special circumstances are present, such as a vessel restricted in its maneuvering ability). The circumstance which most frequently results in a determination of Navy liability for net damage is the failure of the lookout to see or appreciate the significance of lights or dayshapes on a vessel indicating fishing or trawling in progress, or to see floats or buoys in the water indicating the presence of fishing lines 94 The CHATTAHOOCHEE, 173 U.S. 540 (1899). 95 In the Matter of TA CHI Navigation (Panama) Corp., 728 F.2d 699 (5th Cir. 1984). 96 The DEL RIO, 209 F.2d 178 (9th Cir. 1953).
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or nets. When claims for net damage are denied, the reason usually is the failure to show proper lights or dayshapes on the fishing vessel, the failure to secure floats or buoys adequate to indicate the presence of a fishing line or net in the water, or the presence of the lines or nets in navigation channels or other prohibited areas. B. Wake Damage Cases

The force of a vessels wake can cause property damage or personal injury, or perhaps both. The Navy has paid property damage claims to owners of boats thrown onto sandbars and shoals, and to owners whose vessels were slammed against piers, as a result of naval vessels wake, and personal injury claims to occupants of such craft. Similarly, the Navy has paid claims to the owners of piers and other shoreside property when wakes have caused property damage, A vessel causing damage or injury to another vessel or its occupants, or to a shoreside structure, as a result of its wake will be held responsible for any failure to appreciate the reasonable effect of the vessels speed and motion through the water at the particular place and under the particular circumstances where the incident occurred. The vessels officers and crew are obligated to note the presence of others who might reasonably be affected and It is no defense to take all reasonable precautions to avoid causing harm. that a vessel was proceeding at its customary speed at the time of the incident. 97 Balanced against the rule of GEORGIE MAY is the principle that a moving vessel is not an insurer against all damage resulting from its wake, but rather is liable only for damage or injury caused by unusual swells or suction.98 Liability of a vessel is established upon a showing that the alleged damage was caused by a wake, that the wake was created by the passing vessel which is being charged with responsibility, and that the damaged vessel was able to withstand the effects of ordinary swells and hydraulic suction, either by virtue of being properly moored or anchored, or, if the damaged vessel was underway at the time, by virtue of its general seaworthiness. Once these facts have been established, the offending vessel can absolve itself of fault only by showing that it was powerless to prevent the damage or injury by adopting any practical precautions, 99 a result difficult to achieve since usually one of the precautionary measures available to the moving vessel is to reduce its speed, thereby reducing the size and effect of its wake.

97 Moran v. M/V GEORGIE MAY, 164 F. Supp, 881 (S.D. Fla. 1958). 98 State Bank and Trust Co. v. DEL-CO Marine Inc., 1981 A.M.C. 1301 (E.D. La. 1980). 99 Shell Pipe Line Corp. v. M/T CYS ALLIANCE, 1982 A.M.C. 389 (E.D. La. 1981).

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An example of the analysis used in a wake damage case may be found in the claim of the owner of the boat TUCY, which was sunk by the wake of USS ATLANTA (SSN 712). The incident occurred approximately four nautical miles off Virginia Beach while the submarine was outbound on the surface in the southeast separation channel at a speed of 16 knots. The operator of TUCY, then on a pleasure voyage, decided to close the submarine to get a better view of it. At a position about 300 yards abeam of the submarine, TUCY was struck by the submarines wake, and the boat sank shortly thereafter. Notwithstanding that the submarines speed was considered ordinary in view of its location at sea in a major shipping lane (rather than in a harbor or other close quarters situation), the Government did not escape liability for the accident. Members of the submarines crew denied noting the presence of TUCY, notwithstanding calm seas and clear weather. Under these circumstances, a court likely would have found a presumption of fault on the submarines part for failing to maintain a proper and vigilant lookout.100 Having violated a navigation rule, the United States would then have the burden of proving that USS ATLANTAs violation was not and could not have been a contributing cause of the incident (the PENNSYLVANIA Rule101), a result considered unlikely since awareness of the presence of other vessels and then taking all reasonable precautions to avoid damage are the indicia of innocence in wake damage cases. Of course, the operator of TUCY was not blameless, as he elected to navigate TUCY to within approximately 300 yards of a submarine when the prudent action would have been to open the distance between his craft and the much larger vessel. This comparative negligence of the operator of TUCY reduced his recovery by 50%.

100 Rule 5, 72 COLREGS; Circle Line Sightseeing Yachts v. City of New York, 283 F.2d 811 (2d Cir. 1960). 101 Supra note 88.
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CHAPTER XII ADMIRALTY CLAIMS

PART A - INTRODUCTION 1201 1202 SCOPE ORGANIZATION

PART B - REPORTING AND INVESTIGATING ADMIRALTY INCIDENTS 1203 a. b. c. d. e. f. g. h. i. j k. l. m. 1204 1205 a. b. c. d. e. f. 1206 1207 a. b. c. d. 1208 1209 a. b. c. d. e. f. g. ADMIRALTY INCIDENTS Generally Collision Allision Personal injury or death Property damage Swell wash or wake damage Navy maritime target ranges Special Services boats and marinas Navy aircraft Salvage Vessel seizures Grounding Significant maritime incidents INITIAL REPORT OF ADMIRALTY INCIDENT SUBSEQUENT INVESTIGATIVE REPORT Generally Letter report JAG Manual investigation Court of Inquiry Relation to damage survey Release of investigative report SURVEYS DOCUMENTARY EVIDENCE Original documents Use of documents at trial Photographs and videotapes Logs COLLISION AND ALLISION CASES DOCUMENTING COLLISION DAMAGE AND REPAIR COSTS Elements of Navy damages Collision repairs Repair costs Noncollision work Commercial shipyard repairs Detention costs Prompt repairs

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1210 a. b. c. d. e. f. 1211

PERSONAL INJURY CASES Generally Types of victims Considerations in any investigation Shoreworker injuries General visiting and ship tours Civilian Federal employees CORRESPONDENCE WITH PRIVATE PARTIES

PART C - ADMIRALTY CLAIMS AGAINST THE NAVY 1212 1213 1214 a. b. 1215 a. b. 1216 a. b. c. d. e. f. 1217 a. b. c. d. e. f. 1218 a. b. c. d. e. f. g. 1219 1220 a. b. NAVY LIABILITY AUTHORITY FOR CLAIMS SETTLEMENT STATUTE OF LIMITATION Suits under the Suits in Admiralty Act or the Public Vessels Act Admiralty claims ADMINISTRATION OF ADMIRALTY CLAIMS Generally Assistance to claimants PROPER CLAIMANT Damage to property cases Personal injury cases Death cases Agent or representative Subrogation cases Limitation on transfers and assignments PRESENTMENT OF AN ADMIRALTY CLAIM Presentment defined Basic content of claim Supporting evidence: generally Supporting evidence: property damage cases Supporting evidence: personal injury cases Supporting evidence: death cases ACTION BY THE ADJUDICATING AUTHORITY Action upon receipt of the claim Standard for adjudication Adjudication Favorable settlement Payment of claims Denial Reconsideration ADJUDICATING ADMIRALTY CASES AS FOREIGN CLAIMS ACTION UPON NOTICE OF SUIT AGAINST THE UNITED STATES Generally Litigation reports

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PART D - AFFIRMATIVE ADMIRALTY CLAIMS 1221 AUTHORITY FOR AFFIRMATIVE CLAIMS SETTLEMENT 1222 STATUTE OF LIMITATION FOR AFFIRMATIVE CLAIMS 1223 AFFIRMATIVE CLAIMS PROCEDURES a. Generally b. Action upon notification of an admiralty incident c. Determination and notice of claim d. Standard for claim settlement e. Favorable settlement f. Deposit of proceeds g. Release from liability 1224 FORWARDING AFFIRMATIVE CLAIMS TO THE DEPARTMENT OF JUSTICE PART E - MISCELLANEOUS 1225 1226 1227 1228 1229 a. b. SALVAGE TOWAGE AND PILOTAGE INTRAGOVERNMENT ADMIRALTY INCIDENTS FOREIGN GOVERNMENT CLAIMS COAST GUARD AND NATIONAL TRANSPORTATION SAFETY BOARD INVESTIGATIONS Coast Guard investigations of marine casualties National Transportation Safety Board (NTSB) investigations of marine casualties

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PART A - INTRODUCTION

1201

SCOPE

a. This chapter applies to admiralty tort claims, including claims against the United States for death, personal injury, or property damage caused by a naval vessel or other property under the jurisdiction of the Navy, or resulting from a maritime tort committed by any agent or employee of the Navy, and affirmative claims by the United States for damage to Navy property caused by anothers vessel or maritime tort. Also, this chapter briefly discusses salvage claims by or against the United States and claims by the Government for towage services rendered to privately owned vessels. This chapter does not apply to admiralty incidents involving only U.S. Government vessels or property. See section 1227. b. Part B of this chapter provides guidance to commanders on reporting and investigating admiralty incidents. Parts C and D of this chapter discuss procedures for processing admiralty claims by judge advocates involved in admiralty claims adjudication. c. Effective handling of admiralty claims depends on immediate notice of any admiralty incident, however trivial, to the Judge Advocate General (Code 11). See sections 1203 and 1204. Prompt reporting facilitates proper investigation and resolution of admiralty matters, whether the case is settled administratively under the Secretary of the Navys statutory claims authority or results in litigation. 1202 ORGANIZATION a. The Secretary of the Navy has authority for administrative settlement and direct payment of claims for personal injury or property damage caused by naval vessels or other property under the Navys jurisdiction, or by a maritime tort committed by an agent or employee of the Navy, and for towage or salvage services rendered to naval vessels, when

the amount paid does not exceed $1,000,000 and the matter is not in litigation. 10 U.S.C. 7622 (1982). The Secretary also has authority to settle affirmative admiralty claims for damage to property under the Navys jurisdiction caused by a vessel or floating object. 10 U.S.C. 7623 (1982). b. The Judge Advocate General (Code 11) processes admiralty claims for adjudication by the Secretary of the Navy, or the Secretarys designee, and acts as principal liaison with Department of Justice for admiralty tort cases in litigation. The address of the Judge Advocate General (Code 11) is: Department of the Navy Office of the Judge Advocate General (Code 11) 200 Stovall Street Alexandria, VA 22332-2400 c. Other organizations may process some Four naval commanders admiralty claims. (Commander in Chief, U.S. Naval Forces, Europe; Deputy Commander in Chief, U.S. Naval Forces, Commander Sixth Fleet; Europe; and Commander, U.S. Naval Activities, Caribbean) have been delegated limited authority to adjudicate and settle admiralty tort claims against the United States arising in their respective jurisdictions. See section 1213b. Additionally, contract claims arising from operation of chartered vessels, including claims for charter hire, cargo damage, general average, and redelivery repairs, are handled by Office of Counsel, Military Sealift Command. Similarly, claims for damage caused by Navycontract stevedores are under the cognizance of Office of Counsel, Naval Supply Systems Command. However, all tort claims arising from the operation of any naval vessel, including Military Sealift Command (MSC) vessels, are handled by the Judge Advocate General (Code 11) or, as appropriate, one of the four naval commanders above.

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PART B - REPORTING AND INVESTIGATING ADMIRALTY INCIDENTS

1203 ADMIRALTY INCIDENTS a. Generally, Any tort arising, in whole or in part, from the operation of a vessel upon within admiralty waters is navigable jurisdiction, and thus, an admiralty incident. Furthermore, damage occurring ashore caused by a vessel or afloat object usually falls within admiralty jurisdiction, as does damage to certain structures located on navigable waters which traditionally are not thought of as vessels. Paragraphs b through m list common admiralty incidents which often generate admiralty claims or litigation. Whenever one of these incidents occurs, notify the Judge Advocate General See section 1204. (Code 11) immediately. Similarly, if a command receives a complaint, claim, invitation to a survey, or other correspondence alleging such an incident (even if the receiving command believes the complaint or allegation has no basis in fact), notify the Judge Advocate General (Code 11) If a command is uncertain immediately. whether a particular occurrence is an admiralty incident, contact the Judge Advocate General (Code 11) for guidance. b. Collision. A collision occurs when a moving vessel strikes another moving vessel. See sections 0906, 1208 and 1209 for special considerations when investigating a collision. An allision occurs when a c. Allision. moving vessel strikes a stationary vessel or structure; for example, a vessel underway strikes a pier, bridge, buoy, or anchored or moored vessel. See sections 0906, 1208 and for considerations when special 1209 investigating an allision. Death or d. Personal injury or death. personal injury to an individual not an active duty member of the Armed Forces of the United States, occurring on board a naval vessel, on the brow of a naval vessel, or on a boat transporting the individual to or from a naval vessel, is an All personal injuries or admiralty incident. deaths in those circumstances must be reported to the Judge Advocate General (Code 11) despite how the injury occurred, whether there is any Navy responsibility for the injury, whether the injury appears minor, or whether the injured party stated an intention not to file any claim against the Government. Additionally, death or personal injury occuring ashore or on 12-6 Change 7 34

board another vessel not owned by the United States, and arising, in whole or in part, incident to any aspect of operation of a naval vessel, is an admiralty incident and must be reported. Examples include a person struck by anything thrown or dropped from a naval vessel, a ships brow rolling over the foot of a person standing on a pier, or an individual sickened by gases, smoke, or fumes from a naval vessel. See section 1210 for special considerations in death or personal injury investigations. e. Property damage. Any loss, damage, or destruction of property, afloat or ashore, which arises, in whole or in part, incident to the operation of a naval vessel, or damage to Navy property caused by a privately owned vessel or floating object, is an admiralty incident. Examples include: (1) Fishing nets, lines, lobster pots, or other gear in the water, cut or damaged by naval vessels, including amphibious vehicles. Also, fishing gear damaged or lost by becoming fouled on Navy submarine cables, underwater naval ship or aircraft wreckage, or naval ordnance. (2) Automobiles or other property located on a pier damaged by an object thrown or dropped from a naval vessel, or by paint overspray from the vessel, or by smoke, fumes, or chemicals from the vessel. (3) Air or water pollution damage caused by a vessel or occurring on navigable waters. (4) Damage or loss of a civilian contractors property on board a naval vessel. (5) Significant damage to afloat naval property, including a vessel in dry-dock, from substandard performance by a civilian contractor. f. Swell wash or wake damage. Civilian personal injury or property damage allegedly resulting from the wake or swell created by a naval vessel is an admiralty incident. Property damage includes damage to other vessels, shore structures, oyster beds, or clam flats. Similarly, damage to Navy property from the wake or swell from a privately owned vessel is an admiralty incident.

g. Navy maritime target ranges. Civilian personal injury or property damage allegedly resulting from maintenance or use of a naval maritime target range is an admiralty incident. h. Special Services boats and marinas. Civilian personal injury or property damage allegedly resulting from use of Special Services rental boats, or damage to privately owned vessels moored at Special Services marinas from Government resulting allegedly negligence, is an admiralty incident. A waiver of liability, signed as consideration to use a rental boat or for permission to moor a privately owned boat at a marina, does not obviate reporting the incident to the Judge Advocate General (Code 11). i. Navy aircraft. Civilian personal injury or property damage caused by naval aircraft on or over navigable waters is an admiralty incident. Examples include a minesweeping helicopter cutting fishing gear, and debris or ordnance falling from an aircraft and damaging a civilian boat or injuring its passengers. j. Salvage. Salvage of any naval property by a civilian from navigable waters and salvage of civilian property by a naval unit are admiralty incidents. k. Vessel seizures. A naval units seizure of any civilian vessel is an admiralty incident. An example is seizing a civilian boat during a drug interdiction operation. l. Grounding. The grounding of a naval vessel is an admiralty incident. See section 0905 for special considerations when investigating a grounding. m. Significant maritime incidents. Proximity of a naval vessel to any significant maritime incident should be reported to the Judge Advocate General (Code 11) because the United States, even if not directly involved, is often joined in litigation arising from these events. Examples include witnessing the loss or damage of a civilian merchant vessel, or the rescue at sea of survivors from a sunken or disabled vessel. 1204 INITIAL REPORT OF ADMIRALTY INCIDENT a. Every admiralty incident must be reported immediately by telephone ((202) 3259744, AUTOVON 221-9744) or message (NAVY JAG ALEXANDRIA VA) to the Judge Advocate

General (Code 11). This initial report is in addition to other reports required by higher authority and may be accomplished by making NAVY JAG ALEXANDRIA VA an information addressee on a message report required by an OPREP 3 other directives (example: message). b. The initial report of an admiralty incident should include all information and details available at the time of the report. Normally, an initial report includes date, time, and place of incident, a brief description of the incident and any resulting injury or damage, and identification of the parties involved in the incident (naval vessel, aircraft, or unit; civilian vessel, individual, or organization). c. Immediate notice enables an admiralty attorney to examine the admiralty claims considerations of a particular case at an early stage. Liability may not be apparent to the naval command considering the operational, administrative, or disciplinary features of a case. The admiralty attorney provides advice on admiralty issues and assists in preparing the investigation considering a potential claim or Also, admiralty claims and civil lawsuit. litigation practice requires action soon after the event. Common examples include: engaging the services of an independent marine surveyor for attendance at a formal joint survey of damages (see section 1206); developing detention data on a naval vessel to be repaired; and ensuring segregation of repair work orders and cost data for an admiralty incident from other work, not arising from the admiralty incident, accomplished during a repair period for the convenience of the Navy. 1205 SUBSEQUENT INVESTIGATIVE REPORT The initial report of an a. Generally. admiralty incident, discussed in section 1204, must be supplemented as soon as practical by a written investigative report of the facts and circumstances of the incident, including documents, witness statements or interview summaries, photographs, diagrams, and other Because this report is data as required. prepared in contemplation of a claim or litigation, the assigned admiralty attorney will advise and assist the investigating officer in preparing the report, and normally will request particular items as enclosures. This written investigative report will be either a JAG Manual investigation, as defined in chapter II of this manual, or a letter report as set forth in this 35

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section. For most admiralty incidents, a letter report is appropriate to explain the facts of an incident and transmit relevant materials for A Manual claims JAG adjudication. investigation is used in serious cases where, in addition to civil liability issues, there are operational, organizational, or management issues, which a convening authority in his discretion may wish to examine. b. Letter report. The letter report is a convenient reporting method that is less time consuming than a JAG Manual investigation. The precise form of a letter report is less important than the requirement that the circumstances of an incident be completely and promptly explained. The letter report usually consists of a letter from the command principally involved in an admiralty incident, addressed to Judge Advocate General (Code 11), with the facts of the case in narrative form. It includes witness statements or interview summaries, copies of documents, photographs, or other items which provide the basis for the factual narrative in the letter, as enclosures. c. JAG Manual investigation. For some admiralty incidents, a convening authority orders an administrative fact-finding body, known as a JAG Manual Investigation. These investigations usually do not require a hearing and are completed under chapter V of this manual. A serious casualty may be the subject of a court of inquiry or board of investigation where a hearing is required, conducted under chapters IV and V of this manual. The Judge Advocate General (Code 11) will assist the investigating officer or panel to include Information needed for potential claims or litigation which may arise from the incident. An advance copy of every JAG Manual investigation of an admiralty incident should be forwarded to the Judge Advocate General (Code 11) as soon as available. Delays in receiving an investigative report may prejudice the compromise of claims. Provide copies of endorsements on the JAG Manual investigation to the Judge Advocate General (Code 11) as the investigation is forwarded through the chain of command. The following d. Court of Injury. additional considerations are relevant in admiralty cases involving courts of inquiry. (1) When Investigating collisions or allisions with civilian vessels, personnel of the privately owned vessel will not be designated parties to the Investigation or accorded such 36

rights. They may, however, be invited to appear as witnesses with counsel while testifying. Such invitations are usually declined on advice of counsel. If invitees elect to appear, neither those individuals nor their counsel may be present when other witnesses are testifying. (2) Witnesses from a privately owned vessel testifying before a naval investigation should be furnished a copy of their testimony as a matter of written record, and the witnesses should be requested to inform the investigating officer or convening authority of any errors in the transcript. This increases the value of the record for its possible effectiveness for impeachment in later litigation. Opposing interests are not furnished a copy of the investigation report or any information on the testimony of Navy witnesses. (3) In a court of inquiry, it usually is not advisable to subpoena witnesses from the private vessel involved in a collision with a naval vessel because the record of the Navy inquiry would then be discoverable. (4) If submission of the investigation report will be significantly delayed, an advance copy of the transcribed testimony at the investigation should be forwarded to the Judge Advocate General (Code 11). e. Relation to damage survey. A formal joint survey of damages, described in section 1206, is not a substitute for a commands investigative report of an admiralty incident. f. Release of investigative report. No command, other than the Office of the Judge Advocate General, may release the investigative report of an admiralty incident, or any portion, to a potential claimant, an attorney purporting to represent a claimant, or any other private person or organization. All requests for investigative reports shall be forwarded to the Judge Advocate General (Code 11) for action. See section 1211. 1206 SURVEYS

a. When a claim for damage to properly arising from an admiralty incident is asserted, the party contemplating such a claim usually invites the allegedly responsible party or parties to a formal joint survey of the damage. A survey minimizes subsequent disputes on the nature and extent of damage attributable to a particular incident, and provides a reliable

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estimate of the cost of repairs. If a claim is not settled administratively, the survey report can eliminate questions of proof during litigation. Failure to give interests an opposing opportunity to survey damage allegedly resulting from an admiralty incident places a heavy burden of proof on the party later seeking to establish such damage at trial. In most admiralty cases with substantial damage, whether involving potential claims by or against the United States, a joint survey of the damage will be desired. b. The survey is the formal, technical, joint survey held by representatives of the two (or more) parties involved. R is not an ex parte appraisal, as is used in the Navys internal investigation of an incident or with the disposal of worn or damaged naval material. Nor should a joint survey of damage be confused with the survey conducted on civilian vessels by representatives of marine underwriters following damage incidents. Rather, for a formal joint survey of damage, each party normally appoints its own surveyor who, with the other surveyor(s), examines the damage and attempts to reach agreement on the extent of damage from the casualty. The survey report lists items of damage and recommended repairs. When all parties agree, the surveyors sign the report to record their concurrence; surveyors normally sign without prejudice as to liability. If there is disagreement, disputed points are specifically noted. No surveyor subscribes to any statement in the survey report when he or she disagrees. c. Surveys should be held as soon after the casualty as possible. See section 1204. The Navys survey is accomplished under a contract between the Navy and a commercial marine damage survey firm. Survey services are also provided to the Army and Air Force under the Navys contract. d. Only the Judge Advocate General (Code 11) may accept survey invitations from potential claimants, extend survey invitations to persons allegedly responsible for damaging Navy property, and request representation by a marine surveyor at the survey. e. If any naval activity receives an invitation to attend a survey of damage, the Judge Advocate General (Code 11) must be notified immediately by telephone or priority message to permit a timely response.

1207 DOCUMENTARY EVIDENCE a. Original documents. The Governments position may be materially prejudiced if an original document is not available at trial. No apparently relevant original document should be destroyed or discarded without the prior approval of the Judge Advocate General (Code 11). Photocopies of pertinent official documents are acceptable for investigative reports under section 1205; however, original logs, rough statements, chronologies, and other must and documents be segregated safeguarded for possible future use at a trial. Because a trial may occur years after the incident, the custodian must ensure the materials are not inadvertently discarded by persons unfamiliar with the admiralty incident and the reasons for preserving the documents. Although b. Use of documents at trial. originals are required at trial, the original is produced for inspection only and does not become part of the court record. The court attaches a copy to the record of trial and returns the original to the Judge Advocate General (Code 11) for forwarding to the appropriate command. c. Photographs and videotapes. Photographs and videotapes can be valuable enclosures to admiralty investigations, especially when taken near in time to the incident. They illustrate property damage, angle of collision, size and condition of equipment, and physical layout of a space where an injury occurs. Commands may use official photographers or other persons to take photographs. Record on the reverse side of each photograph: the hour and date it was taken; a brief description of the location or area photographed; the full name, rank or rate, and Social Security number of the photographer; and full names and addresses of persons present when the photograph was taken. Similar information should be on a label affixed to a videotape. This information is important so photographs or videotapes can be authenticated and identified by witnesses Photographic negatives during litigation. should be segregated and safeguarded for possible future use. d. Logs. No erasures should be made in a logbook or original navigation record. Make corrections by lining through the original so that it is still legible and inserting the

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The person making the change correction. should initial the original entry and correction. 1208 COLLISION AND ALLISION CASES a. The ships crew should gather and safeguard documentary evidence immediately after any collision or allision involving a naval vessel. Not all original logs and records listed below are relevant in every case; for example, some contain no information of value for a minor allision with a pier or other shore structure. The following are among the original records which normally must be preserved for the investigative report of the incident: (1) deck log (2) bell book (3) engineering log (4) chart in use (do not erase markings once a collision or allision has occurred) (5) bearing book (6) magnetic compass record (7) deviation data, azimuth records, and course recorder records (to include SINS printout if installed) (8) CIC log(s) (9) radar log(s) (10) DRT plot (should be annotated with the DRT Operators name and scale used for the plot) (11) Bridge and CIC maneuvering board worksheets (signed and dated by the individual whose work is reflected) (12) photographs of Bridge and CIC status boards (if possible, should be done immediately after the incident so the boards show data at time of incident) (13) radar plot (14) communication and signal logs (15) Bridge and CIC voice radio logs

(16) all messages on the incident (classified and unclassified, from every net, whether transmitted or received) (17) Bridge, CIC, and Engineering Standing Orders, and Night Orders (18) fathometer record (19) any audio or video tapes which recorded any aspect of the incident (20) damage control reports (21) records on training and qualifications of individual watchstanders on the bridge, in CIC, and in the engine room b. To preserve all records of first entry, collect and safeguard rough logs, notebooks, and individual sheets of paper containing navigational or other data later recorded in a smooth log, noting who recorded the particular information. c. Conflicts between times of entries in various logs often cause difficulty in litigation. Comparisons of the clocks in the bridge, CIC, engine room, radio room, etc., should be recorded as soon as possible after a collision or allision. d. Completely list all officer and enlisted watchstanders on the bridge (including lookouts), signal bridge, CIC, and engine room at the time of the incident, as soon as possible after the incident. The identity of any other person who was in CIC, on the bridge, or otherwise topside when a collision or allision occurred, also should be noted. This list shall contain the full name, rank/rate, Social Security number, and watchstation of each individual. 1209 DOCUMENTING AND REPAIR COSTS COLLISION DAMAGE

a. Elements of Navy damages. In almost all collisions where the other vessel is at least partially at fault, the United States will assert a claim against that vessel for the costs incurred in repairing the naval ship. Establishing the value of the Navys damage claim is often extremely The Navys claim arising from a difficult. collision or allision may include the cost of-(1) temporary repairs; and permanent hull

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(2) dry-docking; (3) lost or damaged equipment, stores, provisions, fuel, and ammunition; (4) off-loading and reloading fuel and ammunition; (5) towage and pilotage; claims paid to (6) personnel crewmembers who suffered personal property losses due to the collision; (7) survey fees; (8) detention; and (9) emergency assistance by other Navy commands to the naval vessel involved. Collision repair b. Collision repairs. specifications should concur with the findings and recommendations in the joint survey report. If significant additional damage not covered by the original survey is discovered during repairs, the Judge Advocate General (Code 11) should be notified immediately so opposing interests may be contacted for a chance to survey newly discovered damage. c. Repair costs. The Naval Sea Systems Command directs its field activities to maintain separate and exact records of collision repair costs and to expedite the furnishing of data to judge advocates preparing damage statements. Usually, original repair specifications, job orders, time and material cards, dry-docking report, and departure report are needed for Coordination with the damage statements. repair activity is necessary. The vessels logs must contain entries establishing the specific time the collision repairs were commenced and A departure report must be completed. checked to confirm that its data is consistent with other repair documents and that there is a proper allocation of costs between collision and noncollision items, as reflected by the job orders. d. Noncollision work. All noncollision work must be covered by separate job orders to eliminate including noncollision work in the collision repair costs.

When e. Commercial shipyard repairs. naval vessels will be repaired in commercial yards rather than naval shipyards, invitations to bid are issued to commercial shipyards and the contract is awarded to the low bidder. The collision repair specifications should be based findings on the and surveyors recommendations. The shipyards bill or invoice and proof of Navy payment show repair costs for those items performed by the commercial shipyard. As with repairs done by a naval shipyard, noncollision work should be covered by separate specifications, job orders, bids, and invoices. f. Detention costs. When a commercial vessel must be withdrawn from service because of collision damage, her owner may recover the vessels loss of earnings and reasonable expenses incurred during the repair period. This loss of earnings rule does not apply to naval vessels since they do not carry passengers or cargo for profit. When a collision causes the unexpected loss of use of a naval vessel, however, the Government may recover the operating and maintenance costs of the ship for the period the Navy was deprived of the vessels normal service. Detention is not legally recoverable when a vessel would have otherwise been out of service, such as for periodic overhaul or prospective inactivation. Detention includes out-of-pocket expenses for the repair period, particularly-(1) pay and allowances of officers and crew; (2) subsistence of crew; (3) fuel and lube oil consumed; and (4) supplies and stores consumed. To support a detention claim, the Navys damage statement includes documentary evidence showing the exact subsistence, wages, and other expenses of the vessel. Affidavits from the cognizant supply, disbursing, and engineering officers stating that the original ships records (which must be preserved) disclose such expenditures will support the claim. The Judge Advocate General (Code 11) will provide advice and assistance on preparing affidavits and other documentation in support of a detention claim.

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g. Prompt repairs. Collision repairs to a naval vessel should be made as expeditiously as practical, especially when a detention claim is being presented by the Government. A short repair period avoids the skeleton crew doctrine, where the Navy would recover as detention costs only the pay, allowances, and subsistence for a skeleton crew, rather than the full complement of members, when an extended repair period was involved. 1210 PERSONAL INJURY CASES Any shipboard death or a. Generally. injury to an individual not a member of the armed forces of the United States is an admiralty incident. See section 1203d. This section applies to injuries to persons ascending gangway, or brow, descending a or accommodation ladder, or to injuries to persons on a pier or on another vessel as a result of events taking place on board the Navy ship. Notify the Judge Advocate General (Code 11) immediately of such accidents so the incident is investigated as required by sections 1203-1205. b. Types of victims. Generally, the injured party fits into one of two broad categories: shoreworker (a person on board the naval vessel to accomplish work under contract between the Navy and civilian firm); and ships visitor (a person on board the naval vessel for any other reason, including general visitors, special tour guests, salesmen, and individual crewmember guests). c. Considerations in any investigation. When investigating any personal injury or death case, consider: All shipboard injuries to (1) Logs. persons not members of ships company should The be recorded in the ships Deck Log. occurrence may be mentioned in other logs, such as the Engineering Log when the incident occurs in an engineering space, or in the Medical Log if care is rendered by the Medical Department. All logs which might possibly contain an entry about the incident should be inspected by the investigating officer, and photocopies of each log containing a relevant entry should be included in the investigative report. When copying a log, copy the entire days log, not just the page containing the relevant entry. If no entries on an injury are found in any log, it may indicate the victim was not hurt seriously enough to report the injury to the OOD or to request immediate medical

assistance. Clearly identify logs reviewed and indicate that no entry was found on the alleged occurrence. (2) Witnesses. Clearly identify all Navy and civilian witnesses to the accident. Identify all persons in the space at the time of an accident, even if they claim not to have seen or heard anything. For naval personnel, include the servicemembers full name, rank/rate, and Social Security number. For civilians, include the persons full name, home address, and telephone number. If the person is a civilian shoreworker, also include his or her badge number, employer, and shop where the person is employed. It is also useful to identify the ships personnel normally in charge of the particular space (division officer, LPO, DCPO) so they may be contacted to comment on the spaces cleanliness, upkeep, and general repair. (3) Witness statements. The investigating officer should prepare a summary of the interview with the witness, rather than having the witness write, sign, or adopt a statement. Many civilian shoreworkers may be reluctant to prepare or sign a written statement, especially when one of their fellow workers is involved. Frequently they will provide a statement to their employer, which the investigating officer may obtain by requesting a copy of the employers accident report. If an apparent witness declines to provide any information, it is extremely important to obtain the precise identifying data mentioned in the preceding paragraph. (4) Inspection of the accident site. A claim or suit by an injured shoreworker or visitor is based on a contention that the ship was negligently maintained or operated. A postaccident inspection can be corroborated by evidence of other inspections (zone, safety, or health and comfort) closely preceding the Incident. Evidence that qualified personnel (DCPO, LPO, division officer, safety officer, or investigating officer) carefully inspected a site immediately following an accident and found the area free from defects is especially Important when there is no eyewitness to the injury. The post-accident inspection should focus on conditions likely to have contributed to the particular incident; for example, if the victim was injured in a fall, the inspection should include the quality of the footing (Was the deck or ladder wet or greasy? Were the ladder treads worn?), lighting in the space, and existence of structural conditions and

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protuberances that might cause an individual to fall. Similarly, if the injury resulted from the failure or giving-way of any of the vessels gear or equipment, a careful examination to discover the cause of the failure should be made, and, if feasible, the gear should be carefully preserved. Whenever possible, a post-accident inspection should include photographs of the accident location (or gear involved) before any changes are made after the incident. See section 1207c. if a defective condition is Furthermore, uncovered, the inspector should attempt to determine how long the condition has been in existence, who (individual and employer) created the condition, and, if created by someone other than a United States employee, whether any crewmembers learned of the defective condition prior to the accident. Finally, PMS records for a space or piece of equipment should be consulted and retained when a defective condition is found. (5) Medical recorcls. Include copies of all naval medical records of treatment by naval personnel in an investigative report of a death or injury. The investigating officer should not delay an investigation to obtain detailed medical records from a civilian hospital, physician, or the injured party. The investigating officer should determine the general nature of the victims injuries from reports and records readily available to the Navy. d. Shoreworker injuries. For a shoreworker injury investigation, an accident report and/or an employers report of injury may be obtained from the injured workers employer, the shipyard safety office, or the cognizant office of the Supervisor of Shipbuilding, Conversion and Repair, USN (SUPSHIP). e. General visiting and ship tours. In addition to paragraph c of this section, investigative reports of an injury occurring during general visiting or tours of the ship should comment on warnings given to visitors (conspicuous signs, printed warnings on brochures provided, and verbal warnings by a tour guide), and presence of crewmembers on the tour route to assist visitors and correct any hazardous conditions noted.

f. Civilian Federal employees. If a civilian Federal employee dies or is injured in the course of employment in an admiralty incident, report it immediately to the Judge Advocate General Federal Employees The 11). (Code Compensation Act (FECA), 5 U.S.C. 8101-8193 (1982), is the sole means of redress against the United States for such individuals. Accordingly, investigative responsibilities for these cases will be streamlined and the Judge Advocate General (Code 11) will provide guidance. If the victim is injured outside the course of employment, FECA does not apply and the case is investigated as any other personal injury or death case. 1211 CORRESPONDENCE PARTIES WITH PRIVATE

a. All correspondence received by a command on an admiralty incident, especially that from a claimant or an attorney purporting to represent a claimant, shall be forwarded expeditiously to the Judge Advocate General (Code 11) for reply. Under SECNAVINST 5820.8 and the Freedom of Information Act, 5 U.S. C. 552 (1982 & Supp. IV 1986), the Judge Advocate General (Code 11) is responsible for processing requests for Navy records, for access to Navy property and information, or for interviews of naval personnel in admiralty matters. These requests often precede claims or lawsuits against the United States. b. All naval personnel contacted by a claimant, or by a claimants attorney on an admiralty incident, should not give a statement or make any admissions which might prejudice Rather, the Governments case. the servicemember should report the contact to the commanding officer, who will inform the Judge Advocate General (Code 11). c. Naval personnel shall not advise a claimant to forward a repair bill so the Navy can take care of it. This advice may mislead the claimant and serve as the basis for a later charge the Navy admitted liability. Similarly, avoid any informal, off the record assurances of probable recognition of a claim.

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PART C - ADMIRALTY CLAIMS AGAINST THE NAVY

1212 NAVY LIABILITY a. The United States waived immunity and consented to suits arising from admiralty incidents under the Suits in Admiralty Act, 46 U.S.C. 741-752 (1982), and the Public Vessels Act, 46 U.S.C. 781-790 (1982). b. The Suits in Admiralty Act provides that, whenever a suit in admiralty can be brought against a private party or vessel, a suit can be brought against the United States in like The law specifies that a circumstances. Government vessel or cargo shall not be subject to arrest or seizure; rather, a complaint in personam shall be brought against the United States in Federal district court for the district in which plaintiffs (or any one of them) reside or have their principal place of business, or in which the vessel or cargo charged with liability is found. c. All naval vessels are public vessels and litigation for damages caused by such vessels must proceed under the Public Vessels Act. The Act allows a complaint in personam against the United States in the Federal district court for the district in which the public vessel is located at the time of the filing of the complaint. If the public vessel is outside the territorial waters of the United States, then suit may be brought in the district in which the plaintiffs (or any one of them) reside or have an office or business, or, if none of the plaintiffs reside or have a business or office in the United States, then in any district Although the Public Vessels Act is court. primarily a tort statute, it allows suits arising from maritime contracts, including suits for towage and salvage services rendered to a public vessel, to be brought against the Government. d. While admiralty jurisdiction in the United States originally did not extend to damage caused by a vessel to a land structure, such as a pier or wharf, the Admiralty Jurisdiction Extension Act, 46 U.S.C. 740 (1982), may make the United States liable under the Suits in Admiralty Act or the Public Vessels Act whether the damage occurs on navigable waters or on land.

1213 AUTHORITY FOR CLAIMS SETTLEMENT a. The Secretary of the Navy has authority to settle, compromise, and pay claims up to $1,000,000 for (1) damage caused by a vessel in the naval service or by other property under the jurisdiction of the Department of the Navy; (2) compensation for towage and salvage service, including contract salvage, rendered to a vessel in the naval service or to other property under the jurisdiction of the Department of the Navy; or (3) damage caused by a maritime tort committed by any agent or employee of the Department of the Navy or by property under the jurisdiction of the Department of the Navy. 10 U.S.C. 7622 (1982). A claim settled for an amount over $1,000,000 must be certified to Congress. Regulations on the Secretarys settlement authority are found at 32 C.F.R. part 752. b. The Secretary of the Navy may delegate settlement authority when the amount to be paid is not over $10,000. 10 U.S.C. 7622 (1982). Under that authority, the following have settlement authority within the limits specified: (1) The Judge Advocate General and the Deputy Judge Advocate General, payment not to exceed $10,000 per claim; (2) The Assistant Judge Advocate General (Civil Law), and the Deputy Assistant Judge Advocate General (Admiralty), payment not to exceed $10,000 per claim; (3) Commander in Chief, U.S. Naval Forces, Europe; Deputy Commander in Chief, U.S. Naval Forces, Europe; and Commander Sixth Fleet, payment not to exceed $3,000 per claim for claims within the jurisdiction of their respective commands; and (4) Commander, U.S. Naval Activities, Caribbean, payment not to exceed $1,000 per claim for loss, damage, or destruction of fishing equipment adjacent to Culebra Island and Vieques Island, Puerto Rico. c. Settlement is final when the claimant accepts payment.

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1214 STATUTE OF LIMITATION a. Suits under the Suits in Admiralty Actor the Public Vessels Act. For the court to have jurisdiction under the Suits in Admiralty Act or the Public Vessels Act, suit must be filed within 2 years after the incident on which the cause of This limitation cannot be action is based. waived administratively, nor is the statute of limitation tolled by filing a claim with the Government. b. Admiralty claims. The 2 year statute of limitation also applies to the Secretary of the Navys settlement authority for admiralty claims filed against the United States. A settlement and written approval of the Secretary or designee must be concluded before the end of the 2 year period or the claimant must file suit under the appropriate statute. A statement describing the Secretarys settlement authority and this limitation is usually included in the initial correspondence from the Judge Advocate General (Code 11) to a claimant or claimants counsel to avoid future assertions that he or she was misled. 1215 ADMINISTRATION CLAIMS OF ADMIRALTY

1216 PROPER CLAIMANT a. Damage to property cases. The owner of the property, or the owners duly authorized agent or legal representative, shall present a claim for loss, damage, or destruction of property. Owner includes bailee, lessee, or mortgagor, and does not include a mortgagee or other person having title for security purposes only. The injured b. Personal injury cases. person or the injured persons duly authorized agent or legal representative shall present a claim for personal injury. The executor or c. Death cases. administrator of the decedents estate, or any other person legally entitled, shall present a claim for wrongful death. A claim d. Agent or representative. presented by an agent or legal representative shall be presented in the name of the real party in interest, shall be signed by the agent or legal representative, shall contain the title or legal capacity of the person signing, and shall be accompanied by evidence of authority to act as agent or legal representative for the real party in interest. The insurer may e. Subrogation cases. present a claim as subrogee for loss wholly compensated by insurance. Parties, jointly or individually as their respective interests appear, may present a claim with the rights of subrogee for loss partially compensated by an insurer. When the aggregate of the claims of subrogor and exceed the adjudicating subrogee authoritys limit, the claims of subrogor and subrogee may be settled and paid if the interest of each is within the adjudicating authoritys The subrogee should furnish jurisdiction. appropriate documentary evidence in support of a subrogated claim. f. Limitation on transfers and assignment. The transfer or assignment of all, or part, of a claim against the United States is void unless made after a claim is allowed, the amount of the claim is decided, and a warrant for payment of the claim has been issued. 31 U.S.C. 3727 (1982). But, assignments of a claim by operation

a. Generally. It is the Navys policy to settle admiralty claims fairly and promptly when legal liability exists. Administrative settlement of admiralty claims eliminates the expense and delay of litigation while obtaining a result advantageous to the financial interests of the United States. Litigation is likely when settlement cannot be arranged. b. Assistance to claimants. Refer claimants or potential claimants inquiring about rights or procedures to the Judge Advocate General (Code 11) or other appropriate adjudicating authority listed in section 1213b. The cognizant admiralty attorney will advise the individual how to present a claim, the address the notice of claim should be mailed to, and what, if any, evidence is required. An officer or employee of the Government cannot act as agent or attorney for another in the prosecution of any claim 18 U.S.C. 205 against the United States. (1982). See chapter XIX for requests for legal assistance with claims against the United States.

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of law shall be allowed, such as a receiver or trustee in bankruptcy, an administrator or executor of a decedents estate, or an insurer subrogated to the rights of the insured. PRESENTMENT 1217 CLAIM OF AN ADMIRALTY

a. Presentment defined. An admiralty claim is presented when a claimant, or the claimants duly authorized agent or legal representative, gives the Navy written notice of an admiralty incident stating a claim for money damages in a sum certain for loss, damage, or destruction of property, personal injury, or death, allegedly resulting from the incident. The claimant may use Standard Form 95 or a letter to state the claim. b. Basic content of claim. At a minimum, a claimant shall be advised to include the following information with notice of an admiralty claim: (1) Full name and complete address of the claimant and, if applicable, the claimants agent or legal representative; (2) Sum certain amount being claimed; (3) Date, time, and place of the admiralty incident giving rise to the claim; (4) Detailed description of facts and circumstances; (5) If possible, the identity of the naval vessel, other naval property, or the agent or employee of the Navy involved; (6) Names and addresses of any witnesses known to the claimant; and (7) Nature and extent of the loss, damage, destruction, or injury sustained. c. Supporting evidence: generally. A claimant has the burden of providing evidence to determine Navy liability and damages with a reasonable certainty. For example, proof may be established by witnesses statements, graphic or and documentary evidence, photographic representations of the incident The claimants failure to provide site. supporting information upon request may result in unfavorable consideration of the claim.

d. Supporting evidence: property damage cases. To support a claim for loss, damage, or destruction of property, a claimant may be required to submit proof of ownership, copies of purchase receipts, invoices, or other documents showing the original cost of the property, and itemized independent repair or replacement estimates or bills. Because property depreciates, a claimant may be required to provide the age and normal useful life of the property. For claims involving substantial damage, the report of a formal survey attended by the claimant and the United provides States excellent supporting documentation. A claimant who did not invite the Government to attend a formal survey of the damaged property will be held to a strict standard to prove damage attributable to an admiralty incident. e. Supporting evidence: personal injury cases. To support a claim for personal injury, a claimant may be required to submit copies of itemized medical bills, payment receipts, and other evidence of medical expenses. A medical report from the claimants attending physician, narrative summaries of treatment, progress notes, doctors orders, and nursing notes may be required to establish the nature and severity of the claimants injuries, prognosis, periods of hospitalization, degree of temporary or permanent disability, and diminished earning capacity. If the prognosis indicates the need for future treatment, the claimant should provide a statement of expected expenses. Additionally, the claimant may be required to submit to a physical or mental examination by a physician employed by the Navy or another Federal agency. If the claim includes lost earnings, the claimant may be required to provide a written statement from the employer showing actual time lost, whether the claimant is a full- or parttime employee, and wages or salary actually lost. If a claimant is self-employed and claims loss of income, appropriate documentary evidence shall be submitted showing earnings actually lost Damages for pain and suffering or other intangible losses may be supported by providing copies of, or citation to, representative cases, or reference to recognized verdict reporting services. f. Supporting evidence: death cases. To support a claim for wrongful death, a claimant may be required to submit documents establishing decedents general physical and

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mental condition before death, itemized bills for medical and burial expenses, or receipts for payment of such expenses, and the full names, addresses, ages, kinship, marital status, and degree of support, of all survivors dependent on the decedent for support at time of death. Furthermore, the claimant may be required to provide evidence establishing decedents employment or occupation at time of death, including decedents monthly or yearly salary or earnings, and duration of decedents last employment or occupation. If damages for pain and suffering prior to death are claimed, a physicians detailed statement may be required injuries suffered, duration of specifying prior to treatment death, and drugs administered for pain. 1218 ACTION AUTHORITY BY THE ADJUDICATING

memorandum to the appropriate adjudicating authority detailing the incident, applicable law, and reasons why the recommended settlement is in the best interests of the United States. An agreement to settle a claim is not concluded until the Secretary of the Navy or the Secretarys designee approves it in writing. Adequate time to obtain approval prior to the expiration of the statute of limitation must be factored into the negotiating process. e. Payment of claims. When settlement has been approved, a voucher is prepared requesting issuance of a U.S. Treasury check in the settlement amount. This check is sent to the 11) or Judge Advocate General (Code adjudicating command which conducted the negotiations for forwarding to claimant. Usually, the claimant is requested to return an executed release by mail before the check is forwarded, on the understanding that the release does not become effective until the check is received by the claimant. A claim may be paid after the 2 year statute of limitation if the settlement agreement was approved by the adjudicating authority before expiration of the limitation period. Claims settled under 10 U.S.C. 7622 (1982) are paid from annual Department of Defense appropriations. f. Denial. A final denial of an admiralty claim shall be in writing and sent to the claimant or the claimants agent or legal representative, as appropriate, and may include a statement of the reasons for the denial. g. Reconsideration. While there is no administrative appeal from the denial of an admiralty claim, the claimant can request the adjudicating authority to reconsider the denial. The claimant must support the request with a theory, evidence, or legal authority not previously provided. 1219 ADJUDICATING ADMIRALTY CASES AS FOREIGN CLAIMS a. Admiralty claims arising in foreign countries may be adjudicated under the Foreign Claims Act. 10 U.S. C. 2734 (1982). As indicated in chapter XXII, such claims are not handled as foreign claims without the Judge Advocate Generals prior authorization. b. If permission is granted for an admiralty claim to be adjudicated under foreign claims regulations, the Judge Advocate General (Code 11) shall be provided a copy of the Foreign 45

a. Action upon receipt of the claim. When an adjudicating authority receives an admiralty claim, the assigned admiralty attorney shall ensure that an investigative report has been prepared under section 1205. Additionally, the attorney determines the sufficiency of the supporting evidence provided with the claim, and shall request from the claimant additional information as necessary to adjudicate the claim. See section 1217. Correspondence to claimant should state it is without prejudice and does not constitute an admission of liability to avoid possible prejudice during litigation. b. Standard for adjudication. The final test of whether settlement is justified is the probable result of litigation. c. Adjudication. An adjudicating authority may approve claims within the settlement limitations of section 1213. The Judge Advocate General (Code 11) acts on behalf of the Secretary of the Navy and his designees in processing and negotiating recommended settlements. When the Judge Advocate General (Code 11) negotiates a settlement in excess of $10,000, the case shall be forwarded to the Secretary for final adjudication. Since denial of a claim means the claim has no settlement value, an adjudicating authority may deny any claim, regardless of amount involved. After settlement. d. Favorable determining a claim should be paid and negotiating an amount acceptable to the claimant and the United States, the assigned admiralty attorney shall prepare and submit a

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Claims Commission proceedings and, if an award is made to claimant, with a copy of the executed release. 1220 ACTION UPON NOTICE OF SUIT AGAINST THE UNITED STATES a. Generally. When suit is filed in an admiralty case, the Department of Justice has cognizance and the Secretary of the Navy can no longer negotiate an administrative settlement 32 C.F.R. part 752. Settlement negotiations at the time of filing between the Navy and the be continued with the claimant may the Department of Justice representing Payment of final decrees or Government. negotiated made under settlements is

Department of Justice procedures and from its appropriations. The Judge Advocate General (Code 11) will assist the Department of Justice in preparing for trial. When litigation b. Litigation reports. begins, the Judge Advocate General (Code 11) will forward a copy of its case file to the Department of Justice with a litigation report. The litigation report contains a narrative summary of the admiralty incident giving rise to the suit and a summary of any negotiations. The admiralty attorney should highlight issues of law and fact, especially those involving jurisdiction and statute of limitation.

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PART D - AFFIRMATIVE ADMIRALTY CLAIMS

1221 AUTHORITY CLAIMS Settlement

FOR

AFFIRMATIVE

corresponding affirmative claims settlement authority. e. The Secretary of the Navy may consider, adjust, compromise, settle, and receive payment for any claim of the United States for salvage services rendered by the Department of the Navy. 10 U.S.C. 7365 (1982). Salvage claims are discussed further in section 1225. 1222 STATUTE OF AFFIRMATIVE CLAIMS LIMITATION FOR

a. The United States may pursue affirmative admiralty claims for most admiralty incidents, and affirmative salvage claims. 10 U.S.C. 7623 (1982) and 10 U.S.C. 7365 (1982). See also 32 C.F.R. part 752. b. The Secretary of the Navy has authority to settle, compromise, and receive payment for claims by the United States for damage to any property under the jurisdiction of the Department of the Navy, if the damage was caused by a vessel or floating object, or is otherwise within admiralty jurisdiction. 10 U.S.C. 7623 (1982). The Secretary also has settlement authority for damage to property that the Department of the Navy is responsible for, allowing subrogation claims accruing in favor of the United States. For example, when the Navy leases a privately owned pier which is damaged by a commercial vessel, and the lease obligates the Navy to pay the pier owner for the damage, or when Navy property is damaged while leased to private interests and the Navy assumes the risk of loss or damage, the Navy may recover from the tort-feasor. c. The Secretarys settlement authority is limited to claims up to $1,000,000 and not in litigation. 10 U.S.C. 7623 (1982). Once suit is filed, the case comes under Department of Justices cognizance for settlement. 32 C.F.R. part 752. The Secretary is authorized to execute a release on behalf of the United States upon payment of the affirmative admiralty claim. Acceptance of payment and execution of a release by the Secretary is final on all parties as to the United States claim. d. The Secretary may delegate settlement authority when the amount to be received does not exceed $10,000. 10 U.S.C. 7623 (1982). The Judge Advocate General and the Deputy Judge Advocate General may exercise the Secretarys authority in settlements not exceeding $10,000. The Assistant Judge Advocate General (Civil Law) and the Deputy Assistant Judge Advocate General (Admiralty) may also exercise the Secretarys authority in settlements not exceeding $10,000. Those individuals with limited authority to settle admiralty claims against the Navy reflected in sections 1213b(3) and (4) do not have

The United States has a 3 year statute of limitation to assert an affirmative claim or commence litigation for money damages arising from any tort, including admiralty torts. 28 U.S.C. 2415b (1982) and 32 C.F.R. part 752. This limitation has certain exclusions, such as lack of Government knowledge of the incident giving rise to the claim, an inability to prosecute a claim due to declared war or unavailability of the res or the defendant, and various exemptions from legal process. 28 U.S. C. 2416 (1982). 1223 AFFIRMATIVE CLAIMS PROCEDURES All claims by the United a. Generally. States for money damages arising from admiralty incidents should be timely and The Judge Advocate pursued aggressively. General (Code 11) acts on behalf of the Secretary and the designees listed in section 1221d in asserting and negotiating affirmative admiralty claims. b. Action upon notification of an admiralty incident. When an admiralty incident involving a potential affirmative claim is reported to the Judge Advocate General (Code 11), the assigned admiralty attorney shall take immediate action to protect the rights of the United States. The attorney shall ensure the investigative report is prepared under section 1205 and adequately addresses responsibility for the incident. Additionally, the attorney shall develop and document the damage suffered by the United States including, in appropriate cases, inviting the tort-feasor to attend a formal survey of the damage. See section 1206. c. Determination and notice of claim. If the admiralty attorney determines the private party is not liable for the Governments damage, the 12-19 Change 7

47

_____ .. =.. .-. ~_.. .

attorney shall recommend closing the file. If the attorney determines the private party is liable, the attorney shall immediately mail to that person or organization and, if appropriate, to the agent, legal representative, or insurance carrier for that person or organization, written notice of the Governments claim, identifying the incident by date, time, and place, describing the damaged Navy property, and stating the Governments intention to hold the offending party responsible for the damage. Supporting documentation, such as a survey report or evidence of actual cost of repairs, should be provided with the notice of claim or as soon as available. d. Standard for claim settlement. The final test of whether settlement is justified is the probable result of litigation, taking into consideration the enforceability of a judgment favorable to the United States and the time and expenses saved in forgoing litigation. After settlement. e. Favorable negotiating a proposed agreement acceptable to opposing interests, the admiralty attorney prepares a memorandum detailing the incident, reasons why the law, and applicable recommended settlement is in the best interests of the United States and submits it for approval to the appropriate settlement authority. The admiralty attorney must conclude settlement before expiration of the statute of limitation, from the including obtaining approval settlement authority, receiving the proceeds, and providing an executed release from further liability.

f. Deposit of proceeds. Amounts received in settlement of affirmative admiralty claims are paid to the Treasury of the United States, except when a Navy industrial fund has been charged for the cost of repairs to damaged Navy property, that fund will be reimbursed for the amount paid out. g. Release from liability. Upon receipt of the settlement proceeds, the Judge Advocate General (Code 11) shall prepare, execute, and forward to the opposing party a release from further liability. Normally, all releases, regardless of amount involved, will be executed for the Secretary of the Navy by the Deputy Assistant Judge Advocate General (Admiralty). 1224 FORWARDING AFFIRMATIVE CLAIMS TO THE DEPARTMENT OF JUSTICE If the Judge Advocate General (Code 11) cannot negotiate an administrative settlement for an affirmative admiralty claim, the case may be forwarded with a litigation report to the Department of Justice recommending that suit be filed. The litigation report should contain a narrative summary of the admiralty incident giving rise to the Governments claim, a detailed statement of the damage sustained, and a summary of negotiations. When suit is filed, the Judge Advocate General (Code 11) shall assist the Department of Justice in preparing the case for trial.

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PART E - MISCELLANEOUS

1225

SALVAGE

a. Salvage claims may be filed against the Navy for compensation for towage and salvage services, including contract salvage, rendered to a naval vessel or other property under the Department of the Navys jurisdiction. The United States may file claims for salvage services rendered by vessels or units of the Department of the Navy. Regulations on these claims are published at 32 C.F.R. part 752. b. A successful salver is generally entitled to: (1) reimbursement of expenses, such as cost of labor and materials expended; and (2) a bonus or reward which is something less than the value of the salved property. Salvage awards encourage others to risk their ships and lives to save anothers property from the sea, but discourage unnecessary or exaggerated service. There is no reward to salvage only human life; however, a salver of life is entitled to an award from the value of any property also salved. The crew of a salving vessel may receive a share of the salvage award. A civilian crew which assists in salvaging a naval vessel has a separate cause of action the against Government from that of the civilian vessel owner. Uniformed naval personnel cannot maintain suit for salvage services performed as part of their official duties. c. Suits against the United States seeking compensation for salvage may be maintained under the Public Vessels Act and the Suits in Admiralty Act. The Secretary of the Navy may pay salvage claims under 10 U.S.C. 7622 (1982). Salvage claims against the Navy are reported and investigated under sections 1203-1205, and processed under the procedures in Part C of this chapter. Both claims and suits against the United States for salvage are subject to the 2 year statute of limitation. See section 1214. d. When a naval ship or unit renders salvage assistance, the Secretary of the Navy can administratively settle the claim against the private shipowner. 10 U.S.C. 7365 (1982). Affirmative salvage claims are reported to and processed by the Assistant Supervisor of Salvage, USN. See NAVSEAINST 4740.4. Affirmative salvage claims are referred to the Judge Advocate General (Code 11) only if the Assistant Supervisor of Salvage is unsuccessful. The Assistant Supervisor of Salvage normally

asserts Navy affirmative salvage claims on a per diem basis as an administrative convenience, but the Government is not precluded from asserting its affirmative claim on a salvagebonus basis. e. If the private shipowner seeks to offset the Navys per diem charges, in whole or in part, with a claim for damage to his ship allegedly caused by the salvaging naval vessel or its personnel, the per diem charge usually is withdrawn and the Navys claim reasserted on a salvage-bonus basis. When a private shipowner pays the per diem salvage charge and then, without prior notice, presents a claim for damage caused to his vessel during the salvage operation, the prior settlement of the precludes Governments salvage claim reasserting that claim on a salvage-bonus basis. To avoid such liability, settlement of a Navy is normally affirmative salvage claim conditioned upon release from any claim for damage to the private ship incurred during the salvage operation. Any damage to a private vessel during a salvage operation should be 1205 investigated section and under immediately reported to the Judge Advocate General (Code 11), who may arrange for a joint survey of the damage. f. A finders reward may be paid for information leading to the recovery of certain types of ordnance, mobile targets, aircraft, and oceanographic equipment. See NAVSEAINST 8500.1 and NAVCOMPT Manual, paragraph 046380. 1226 TOWAGE AND PILOTAGE a. The Navy, on occasion, performs towage or pilotage services for privately owned vessels. The two services are distinct, especially for liability for damage caused by negligent towing versus damage caused by negligent pilotage. b. When commercial firms perform towage or pilotage, they usually attempt to exempt themselves from liability for damage by contract Exemption clauses are generally clauses. successful in pilotage, but the courts have consistently held clauses invalid that attempt to contract away liability for negligent towage. To protect the Navy from liability for negligent pilotage when a commercial firm would, by contract, be relieved of liability, Navy pilotage

49

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should be performed only upon execution of the suggested contract in Appendix A-12-a. 1227 INTRAGOVERNMENT INCIDENTS ADMIRALTY

Advocate General (Code 11) will then assist Department of Justice and Department of State to obtain the ships immediate release. c. Government-owned merchant ships have limited immunity from jurisdictional For example, a process of a foreign state. foreign government-owned vessel is exempt from U.S. jurisdiction if devoted to public use or government operations; however, the immunity of foreign government-owned merchant vessels in competitive commercial transactions may be restricted. d. The United States has waiver agreements with the British and Canadian governments so all maritime claims between the United States and Great Britain or Canada, arising out of the operation of public vessels of these respective governments, are waived. See Maritime Transportation and Litigation Agreement with Great Britain, 4 December 1942, 56 Stat. 1780, E.A.S. 282; and Waiver of Claims Involving Government Ships Agreement with Canada, 15 November 1946, 61 Stat. 2520, T.I.A.S. 1582. These admiralty incidents do not require the usual investigative report or survey for claims purposes. e. Admiralty claims are also affected by Status of Forces Agreements. Under article VIII of the NATO Status of Forces Agreement, an intergovernmental admiralty claim for damage to property owned and used by the armed forces of one contracting party, caused by a vessel of another contracting party, is waived if either the damaging vessel or the damaged property was used in the operation of the North Atlantic Treaty. Similarly, under article XVIII of the Status of Forces Agreement with Japan, the United States and Japan mutually waive claims for property damage caused by members of their defense forces if the damaging instrumentality or the damaged property was being used for official purposes. A similar provision is in the Status of Forces Agreement between the United States and the Republic of Korea. 1229 COAST GUARD AND TRANSPORTATION SAFETY INVESTIGATIONS NATIONAL BOARD

a. Potential claims for collisions between vessels and for other admiralty incidents involving property damage, when the owners involved are the Navy and another Government The waiver agency, are subject to waiver. doctrine is based upon Comptroller General appropriations of one that decisions Government department are not available to pay the claims of another. Federal appears only b. When it Government interests are involved, a report of the admiralty incident must be made under sections 1203 and 1204; an investigation of liability and survey of damage are not required. Upon receiving the initial report of the incident, the Judge Advocate General (Code 11) confirms the status of the vessels or property involved by correspondence with the other Government agency, and the waiver is made a matter of record. It is important to avoid unnecessary labor and expenditures when the claim is subject to waiver. If in doubt on the status of the other vessel or property, request advice by rapid means from the Judge Advocate General (Code 11). 1228 FOREIGN GOVERNMENT CLAIMS a. Admiralty incidents involving United States Navy vessels or property, and a vessel or property owned by a foreign government, must be reported to the Judge Advocate General (Code 11) under sections 1203 and 1204. Action on such claims may be affected by treaties, For international law, and Federal statutes example, the Foreign Sovereign Immunities Act recognizes a foreign nations immunity for sovereign or public acts of that nation in United States territory and limites immunity for commercial or personal acts 28 U.SC. 16041611 (1982). b. Under customary international law, a nations public war vessels are not subject to jurisdictional process in any other nation; all U.S. naval vessels (including MSC vessels) are immune from arrest. If an attempt is made to arrest a U.S. Navy vessel in a foreign country, include NAVY JAG ALEXANDRIA VA as an information addressee in the message report of the arrest attempt. If requested, the Judge

a. Coast Guard investigations of marine casualties. (1) The Coast Guard routinely receives reports of and investigates marine casualties or

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50

accidents involving privately owned vessels. Marine includes casualty or accident collisions, strandings, grounding, foundering, heavy weather damage, fires, explosions, failure of vessel gear and equipment, and any other damage which might affect the seaworthiness of the vessel. Public vessels of the United States, and all naval vessels, are exempt from investigation even if involved in the incident under investigation. 46 C.F.R. part 4. Naval personnel are not required to report a marine casualty involving a public vessel to the Coast Guard, complete any Coast Guard form or other document describing the maritime incident, or participate in a Coast Guard investigation. The incident must be reported to the Judge Advocate General (Code 11) under sections 1203 and 1204. (2) The Navy may assist the Coast Guard with its investigation by sharing information from the Navys own investigation and making naval personnel available as witnesses, but the Navy will not prejudice its claims or litigation. Information disclosed to the Coast Guard normally becomes part of a public record of the incident and is available to interests opposed to the United States. The Judge Advocate General decides whether to disclose a Navy investigation to the Coast Guard and whether naval personnel will be made available to testify at a Coast Guard investigative hearing. Requests for such information, reports or witnesses should be forwarded to the Judge Advocate General (Code 11) by rapid means. (3) The Judge Advocate General (Code 11) may provide a copy of the Navys investigative report of an admiralty incident to the Coast Guard investigator when issues of civil liability are not involved or have been settled. In other situations, the Judge Advocate General (Code 11) may give the Coast Guard a copy of the Navy report only if it is used exclusively for Coast Guard purposes and not made part of the public record. This practice assists the Coast Guards understanding of the incident, supports the Navys policy of interagency cooperation, and preserves the Governments position on claims or litigation. b. National Transportation Safety Board (NTSB) investigations of marine casualties. independent NTSB, an (1) The Government agency, promotes transportation independent safety by conducting involving investigations of accidents

air, Government regulated transportation: highway, rail, pipeline, and major maritime The NTSB may conduct an casualties. investigation of any casualty involving public and nonpublic vessels. The NTSB shall conduct an investigation when: the casualty involves a Coast Guard and a nonpublic vessel, and at least one fatality or $75,000 in property damage; the Commandant of the Coast Guard and NTSB agree that NTSB should investigate a casualty involving a public (e.g., a U.S. Navy) vessel and a nonpublic vessel, and involving at least one fatality or $75,000 in property damage; or the casualty involves significant safety issues relating to Coast Guard safety functions. See 49 U.S. C. 1901-1907 (1982), and 49 C.F.R. parts 845 and 850. (2) The NTSB investigation does not have priority over other official inquiries into major marine casualties, such as the Navys JAG Manual investigation. The NTSB conducts a simultaneous but separate investigation from the Navys own JAG Manual investigation. After a major marine casualty, ensure original documents are preserved and witnesses (after any exercise of their right to counsel) are made available to the Navys investigating officer. Copies of documents and Navy witnesses should then be made available to NTSB for its investigation. NTSB has subpoena power, enforceable through the Federal courts, for the production of persons and documents. The Navys policy is to cooperate with the NTSBs investigation as much as possible, while safeguarding the rights of individuals involved in the incident and preventing unnecessary disruption of the Navys own investigation. (3) Usually NTSB announces whether it will investigate within one day after the incident occurs. An NTSB official in Washington, DC, notifies the type commander of the Navy vessel involved by telephone, although the group or squadron commander may receive initial notification. Upon notice of NTSB involvement, notify the Judge Advocate General (Code 11) by telephone of the initial notice from NTSB and any requests from NTSB. Also, a Navy liaison officer must be appointed as point of contact (POC) for NTSB. The POC should be of the rank of 0-4 or above, technically competent in shipboard navigation and engineering skills, and not a crewmember of the vessel involved. A judge advocate should be available to assist the POC and keep the Judge Advocate General (Code 11) advised of the status of the NTSB investigation. 12-23 Change 7

51

(4) NTSB may request to inspect documents and interview Navy crewmembers as soon as the vessel involved arrives at the pier. The POC should insist that the JAG Manual and NTSB investigations proceed in an orderly fashion. The following is suggested as a reasonable sequence of events: (a) When the ship returns to port, the investigating officer for the JAG Manual investigation should have been assigned. If not transported to the ship while at sea, the investigating officer should immediately collect and review charts, logs, and other documents aboard the ship, and may commence interviews of crewmembers. (b) Within a few days of the ships return, and under arrangements made by the POC, the NTSB (generally three to four officials) arrives on board and is provided with copies of unclassified relevant documents. NTSB officials preliminary crewmember may conduct interviews, but sworn statements should not be

permitted. Document review and preliminary interviews take 2 to 4 days. (c) The NTSB advises the Navy of the date, time, and place of the formal hearing and requests the appearance of specifically-named crewmembers. The hearing is usually held 2 to 4 weeks after the incident. The POC is usually the Navys official representative at the hearing. A judge advocate also should attend the hearing as an observer. (d) The JAG Manual investigation is completed as soon as possible. The convening authority forwards an advance copy to the Judge Advocate General (Code 11) under section 1205. (e) The judge advocate who attended the NTSB hearing should get a copy of the verbatim transcript and summary report of the hearing from the POC and forward them to the Judge Advocate General (Code 11).

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SUGGESTED FORMAT FOR PILOTAGE AND TUG SERVICES CONTRACT (See Section 1226)
It is understood and agreed that the furnishing of pilotage and associated tug services by the Department of the Navy for the vessel shall not be construed to give rise to a personal contract between the named individuals signing this agreement; and it is further understood and agreed that the Department of the Navy in furnishing any pilotage and associated tug services shall have the benefit of all exemptions from and limitations of liability to which the owner of a vessel is entitled under the applicable statutes of the United States; and it is further understood and agreed that when any pilot or a captain of any tug furnished to or engaged in the service of assisting a vessel making use or having available her own propelling power, goes on board such vessel, or any vessel, he becomes the borrowed servant of the vessel assisted and her owner or operator for all purposes and in every respect, including but not limited to the handling and navigation of such vessel and in respect to any orders given to any assisting tugs, his services while so on board being the work of the vessel assisted and not of the United States Navy and being subject to the exclusive supervision and control of the ships personnel; and it is further understood and agreed that the assisted vessel and her owners will assume all liability for any loss or damage (including that suffered or caused by any assisting tug) resulting from or arising out of the negligence or fault of the pilot or assisting tug and that neither the United States Navy, nor any pilot, nor any tug shall be liable, directly or by way of indemnity or otherwise, for any such loss or damage; and it is further understood and agreed that if any such assisted vessel is not owned by the person or company ordering the pilotage and associated tug services, that such person or company warrants its authority to bind the vessel and her owners to all provisions of the preceding paragraphs, and agrees to indemnify and hold harmless the Department of the Navy, its agents, servants, employees and any assisting tug or pilot from any claim and all damages and expenses that may be sustained or incurred in consequence of such person or company not having such authority.

(Signature)

(Title) FOR (Name of Ship)

A-12-a

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INTENTIONALLY

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Assignment 1
Admiralty Law and Its Application in JAG Manual, chapter XII Navy Admirlty Claims Practice: a Primer; and

Textbook

Assignment:

This assignment 33 through 41.

booklet, pages 1 through 15 and

1-3. Learning Objective: Trace the historical development of admiralty law and compare admiralty law and common law principles in selected subject areas.

Which of the following statements correctly describes the present law in the United States on the awarding of damages in an admiralty lawsuit when the plaintiff and the defendant share the fault for causing the accident? 1. The court will apply the Rule of Contributory Negligence to deny damages to any party whose fault contributed to the accident The court will apply the Rule of Divided Damages, awarding each party 50% of its proven damages, because each party contributed to the accident The court will apply the Rule of Majority Fault, awarding damages in full to the party that was less than 50% responsible for causing the accident The court will apply the Rule of Proportional Damages, allocating damages to both sides in accordance with the relative degrees of each sides fault

1-1.

The branch of law known as admiralty law is founded on ideas that 2. 1. 2. 3. 4. emerged from statutory enactments evolved from the common law antedated common law accrued from international conventions

3.

1-2.

Because ships and their saliors may encounter legal difficulties in any part of the world, the major maritime nations apply similar principles of admiralty law. 1. 2. True False 1-4.

4.

Generally, a lein is a legal right to hold, and if necessary to have sold, an item of property in order to satisfy a claim or a charge. 1. 2. True False

1-5.

A ships chandler holds a lein against a ship for stores supplied by him. The ship sails without paying its bill to the chandler. Which of the following statements about the chandlers lein is true? 1. 2. 3. 4. The lien still applies The lein is divested by the ships departure The lein is suspended until the ship returns The lein is revoked by the ships departure, but may easily be reinstated if the ship ever reappears in that port

1-8.

A person who attempts, but falls, to salvage a vessel is nevertheless entitled under admiralty law to receive an award from the vessel owner equal to any costs incurred in the salvage attempt. 1. 2. True False

1-9.

Which of the following statements about maritime salvage is NOT correct? 1. The salvage of a vessel adrift without power in cairn waters is likely to be classified as a low order salvage High order salvage awards tend to be more generous because of the dangers faced by the salvers Predicting a particular salvage award is difficult because the determination of such awards tends to be subjective and arbitrary The law of maritime salvage applies only to the salvage of ships from the perils of the sea

l-6.

Assume that a ship with several suppliers leins against it is sold at auction pursuant to a court order from a proceeding in rem. Generally, what lien, if any, takes precedence? 1. 2. 3. 4. The first incurred The last incurred The first presented to the court, regardless of when it was incurred None; there is no priority among the liens. All leins will receive a proportionate share of the proceeds of the sale

2.

3.

4.

1-10.

1-7.

When a person voluntarily salvages a vessel, what remuneration, if any, is he/she entitled to receive under admiralty law for his/her efforts? 1. 2. 3. 4. A reward equal to the value of the vessel he/she has salved A fair compensation for his services Only reimbursement for actual outof-pocket expenses incurred in salving the vessel Nothing; a volunteer salver acquires no legal rights in admiralty

The basic tenet of the doctrine of general average is that all parties in a particular voyage share those losses occasioned by the perils of the sea proportionately to their interest in the venture. 1. 2. True False

1-11.

A shipowner in the United States may lawfully limit his liability for property damage caused by the negligent operation of his ship to the vessels value immediately after the accident, including to zero if the vessel sinks or otherwise is totally destroyed. 1. 2. True False

56

1-12.

Assume that a vessel of 1,000 gross tons strikes a bridge, causing death and injury to various persons who were located on the bridge, and ripping a hole in the vessel which causes it to sink. According to U.S. statutory law, the shipowner may limit his liability to death and injury claimants to 1. 2. 3. 4. zero, since his vessel was lost in the incident $60,000 $420,000 under U.S. statutory law, a shipowner is prohibited from any limitation of liability in cases involving personal injury or death

1-15.

For a tort to be within admiralty jurisdiction in the United States, it is required that the tortious conduct occur on navigable waters and 1. that the damage caused by such wrongful conduct occur to a person or property located on navigable waters that the wrong complained of bears a significant relationship to traditional maritime activity that a demonstrable nexus exists between the wrong complained of and maritime commerce nothing more, since any tort occurring on navigable waters is within admiralty jurisdiction

2.

3.

4.

Learning Objective: Recognize that cases are within admiralty jurisdiction in the United States, and under what circumstances the U.S. Government may be liable in admiralty.

1-16.

The Suits in Admiralty Act of 1920 provided that a Governmentowned merchant vessel would not be subject to seizure or arrest, but an action in personam could be filed against the United States. 1. 2. True False

1-13.

In the United States initial jurisdiction over an admiralty action in rem rests with what court(s)? 1. 2. 3. 4. U.S. U.S. U.S. U.S. Court of Claims Supreme Court District Courts Courts of Appeals

1-17.

Before the passage of the Suits in Admiralty Act, individuals could not sue the United States for damages caused by Government ships because of the application of 1. 2. 3. 4. mutual fault proximate cause proceedings in rem sovereign immunity

1-14.

Which of the following contracts is NOT a maritime contract for purposes of determining admiralty jurisdiction? 1-18. 1. 2. 3. 4. A contract A seamans employment A contract A contract to build a ship contract of to repair a ship to lease a ship

Under the Public Vessels Act of 1925, U.S. Navy vessels are subject to the same laws as privately owned vessels, and they are exempt from which of the following proceedings? 1. 2. 3. 4. Arrest Seizure Maritime lien Each of the above

57

1-22. Define Learning Objective: the general scope of the Navys admiralty claims settlement authority, and identify how certain organizations are involved with processing admiralty claims.

The mission of the Admiralty Division (Code 11) of the Office of the Judge Advocate General involves which of the following tasks? 1. 2. 3. 4. To process admiralty claims against the Navy To process the Navys affirmative admiralty claims To act as liaison with the Department of Justice for Navy admiralty litigation All of the above

1-19.

The Secretary of the Navy is entitled to settle admiralty claims for damage caused by Navy vessels in amounts up to and including $10,000,000. 1. 2. True False

1-23.

Only the Secretary of the Navy may adjudicate and settle admiralty tort claims against the United States Navy. 1. 2. True False

1-20.

Chapter 12 of the JAG Manual applies to all EXCEPT which of the following incidents? 1. 2. 3. 4. Damage caused by a privately owned ship to a Navy pier Injury to a civilian swimmer caused by a Navy ships wake An allision involving a Navy ship and a Navy pier A collision involving a Navy ship and a civilian sailboat

1-24.

An admiralty tort claim against the United States for damage or personal injury caused by the operation of a Military Sealift Command (MSC) ship will be processed and adjudicated by the Office of Counsel, MSC. 1. 2. True False

1-21.

When an admiralty incident occurs, what immediate action should the involved Navy command take? 1. Have the legal officer make a tentative evaluation of Navy liability and, if it appears that the Navy is liable, convene a court-martial Report the occurrence to the Judge Advocate General (Code 11) Conduct a joint survey of the damage If it appears that a private firm or individuals is responsible for damaging Navy property, serve a notice of claim on the offending party

Learning Objective: Recognize the variety of incidents that give rise to admiralty claims and litigation, and identify the reporting and investigating obligations of an involved command when such an incident occurs.

2. 3. 4.

1-25.

Generally, any tort (personal injury or damage to property), whether afloat or ashore, resulting from the operation of a vessel upon navigable waters is an admiralty incident. 1. 2. True False

58

1-26.

Which of the following incidents need NOT be reported and investigated under JAGMAN chapter 12 as an admiralty incident? 1. Dependent son of Navy ship crew member falls over the side while climbing on the ships lifelines; boy drowns Navy ships brow rolls over the foot of Marine corporal waiting on the pier to embark for a deployment; three toes amputation crushed , requiring Mayor of port city being visited by a Navy ship slips while en route in the captains gig to a welcoming conference on board the ship, then at anchor in the harbor; the mayors minor injuries are easily treated by a ships corpsman All of the above must be reported and investigated under JAGMAN chapter 12

1-28.

2.

3.

Before a demonstration amphibious landing held at Camp Pendleton for members of Congress and other dignitaries, the Department of the Navy causes to be published in local Notice to Mariners appropriate warnings that fishing gear should be cleared from the coastal waters near the designated landing beach. Nevertheless , two incidents, described below, occur during the demonstration in which Which fishing gear is damaged. of the following incidents must be reported and investigated as an admiralty incident? 1. A Navy minesweeping helicopter spots markers for crab pots about 1000 yards off the beach, and demonstrates the proficiency of its cutting gear by severing the marker line from each pot A Marine amphibious tracked vehicle becomes entangled in fishing nets located about 500 yards from the beach; a Marine enters the water and, using his knife, cuts the vehicle free Both 1 and 2 above A Navy minesweeping helicopter inadvertently jettisons marking buoys; they land unremarkably 700 yards from the beach

4.

1-27.

Assume that the mayor described in response number 3 of the preceding question, upon his arrival at the anchored ship, assures the attending corpsman and the ships commanding officer that he has no intention of filing any claim After all, against the Navy. the mayor says, my concern is maintaining favorable relations with the Navy, because ship visits are good for my citys economy. Under these circumstances, JAGMAN chapter 12 does not apply and the commanding officer may ignore the incident. 1. 2. True False

2.

3. 4.

1-29.

Assume that a Navy ship hears the radio distress call of a commercial fishing vessel and immediately proceeds to the vessels location, where it stands by to render any This requested assistance. occurrence should be reported as an admiralty incident 1. 2. 3. under JAGMAN chapter 12 only if the Navy ship actually saves the stricken fishing vessel from sinking only if the efforts of Navy personnel to save the fishing vessel actually cause it to sink only if the Navy ship rescues the crew of the fishing vessel

4.

59

1-30.

The initial report of an admiralty incident to the Office of the Judge Advocate General (Code 11) should be made 1. 2. 3. 4. immediately within 15 days following the date of the incident within 30 days following the date of the incident within 60 days following the date of the incident

1-33.

Which of the following statements about a commands responsibilities after submitting the initial report of an admiralty incident is correct? 1. A JAG Manual investigation must be prepared and forwarded to the Office of the Judge Advocate General (Code 11) A court of inquiry must be convened in accordance with chapters IV and V of the JAG Manual; a copy of its hearing transcript must then be forwarded to the Admiralty Division A litigation report must be prepared and forwarded to the Department of Justice for use in defending the interests of the United States A letter to the Office of the Judge Advocate General (Code 11), setting forth the facts and circumstances of the incident, and forwarding substantiating documents such as photographs, logs, and witness accounts, is usually an appropriate format for a commands subsequent investigative report

2. 1-31. If an admiralty incident is reported to the Office of the Judge Advocate General (Code 11), it is not necessary to report the incident to other seniors in the chain of command. 3. 1. 2. 1-32. True False

A command may satisfy the requirement for initial reporting of an admiralty incident to the Office of the Judge Advocate General (Code 11) by 1. filing an admiralty incident report, that is separate from any other required reports about the incident arranging for a survey of damage by a locally available qualified marine surveyor sending to the Office of the Judge Advocate General (Code 11) a copy of the JAG Manual investigation when it is finalized making NAVY JAG ALEXANDRIA VA an information addressee on other reports required by higher authority

4.

2.

3.

1-34.

4.

A commands subsequent investigative report of an admiralty incident must be submitted 1. 2. 3. 4. withln 30 days after the date of the incident within 60 days after the date of the incident within 90 days after the date of the incident as soon as practical

60

1-35.

An advance copy of a JAG Manual Investigation of an admiralty incident should be sent to the Office of the Judge Advocate General (Code 11) as soon as it is prepared in order to avoid prejudice to the interests of the United States during the period while the investigation is being reviewed and endorsed by the chain of command. 1. 2. True False

1-38.

Which of the following statements about a survey of damage is NOT correct? 1. A survey is intended to minimize disputes about the extent of damage in any subsequent claim or litigation When Navy property has been damaged in an admiralty incident, the responsibility for arranging and issuing invitations to a damage survey rests with the United States The failure of a private shipowner to afford the United States with an opportunity to survey property allegedly damaged by the Navy will result in denial of any subsequent claim against the Government Only the Judge Advocate General (Code 11) may issue and accept survey invitations and request representation by the Navys marine survey firm following Navy admiralty incidents

2.

1-36.

When a formal joint survey of damage is attended by all parties involved in an admiralty incident, the survey report will be an appropriate substitute for a commands subsequent investigative report of the occurrence. 1. 2. True False

3.

4.

1-37.

A command may provide a copy of its investigative report of an admiralty incident to which, if any, of the following individuals/organizations? 1. 2. a claimant, or a claimants representative, but only upon a written request a private organization, such as the shipyard at which the Navy vessel is located when the incident occurred an individual not connected to the incident, such as a reporter None of the above 1-39.

The survey procedure followed by the Navy following an admiralty incident is intended primarily to accomplish what purpose? 1. 2. Satisfy the requirements of marine underwriters Maintain a close working relationship with the Navys marine surveyors Establlsh the specific damage resulting from an admiralty incident Provide a substitute for a commands investigative report of the incident

3.

4.

3. 4.

Learning Objective: Demonstrate an understanding of the purpose and importance of conducting a joint survey of damage following an admiralty incident.

61

1-40.

The Navy will issue invitations to a damage survey under which of the following cicrumstances? 1. 2. After every admiralty incident involving the Navy After every admiralty incident in which the Navy is apparently responsible for damaging privately owned property After the submission of an admiralty claim against the Navy After most admiralty incidents involving substantial damage to Navy property

1-43.

Which of the following statements regarding a formal joint survey is correct? 1. The Navy has retained the services of a civilian marine damage survey firm to provide the Navys surveyor at joint damage surveys following admiralty incidents The investigating officer appointed by command involved in the incident normally will act as the Navys marine surveyor at a joint damage survey following an admiralty incident An attorney from the Admiralty Division of the Office of the Judge Advocate General normally will act as the Navys marine surveyor at a Joint damage survey following an admiralty incident A technically qualified person from a Navy shipyard, SUPSHIP office, or maintenance activity normally will act as the Navys marine surveyor at a joint damage survey following an admiralty incident

3. 4.

2.

1-41.

The usual procedure for conducting a formal damage survey is for 1. each party to appoint its own surveyor, who conducts a damage survey Independently of all other surveyors each party to appoint its own surveyor , who conducts the damage survey Jointly with all other surveyors one surveyor to be chosen by agreement of all parties to survey the damage one surveyor to be chosen by the party who has incurred the most damage

3.

2.

4.

3. 4.

1-42.

Which of the following is/are NOT intended to be a part of the report of a joint survey of damage? 1. 2. 3. 4. A determination of liability for the incident A detailed list of the damage attributable to the incident Recommended repairs for the damage suffered in the incident Any disputed points regarding the survey

Demonstrate Learning Objective: understanding of the handllng of original documents that may have relevance to an admiralty investigation.

1-44.

It is an acceptable practice to include copies of logs and documents, instead of originals, in investigative reports of admiralty incidents. 1. 2. True False

62

1-45.

Which of the following statements about documentary evidence iS NOT correct? 1. The Governments case may be prejudiced if original documents are not available for trial An original log or other official naval record that is produced at trial is copied for the record of trial, and the original is then returned to the Navy Unofficial documents relating to an admiralty incident, such as rough statements, chronologies, and the like are not admissible evidence and therefore need not be retained for possible use at a future trial When the custodian of original documents relating to an admiralty incident transfers, special care should be taken to ensure the successor understands the importance of safeguarding the materials

1-47.

2.

Assume that a Navy destroyer, moored to a pier, is struck by a wayward merchant vessel during a heavy fog. Flooding results in four compartments of the Navy ship. Which of the following information should be preserved for inclusion in the ships investigative report? 1. 2. The destroyers magnetic compass record, deviation data, and navigation chart The destroyers bell book, DRT plot, and photographs of the bridge and CIC status boards The destroyers Engineering Log, Deck Log, and damage control reports All of the above

3.

3. 4. 1-48.

4.

1-46.

Which of the following information should be recorded concerning each photograph included in the investigative report of an admiralty incident? 1. 2. 3. 4. Complete identification of the photographer The hour, date, and place where the photograph was taken Names and addresses of persons present when the photograph was taken All of the above

Assume that a merchant vessel, moored to a pier, is struck by a wayward Navy destroyer during a heavy fog. Flooding results in four compartments of the Navy ship. Which of the following information should be preserved for inclusion in the ships investigative report? 1. The destroyers magnetic compass record, deviation data , and navigation chart The destroyers bell book, DRT plot, and photographs of the bridge and CIC status boards The destroyers Engineering Log, Deck Log, and damage control reports All of the above

2.

3. 4.

63

1-52. Recognize Learning Objective: special considerations applicable when investigating collisions and shipboard personal injuries.

While a Navy ship is undergoing repairs for collision damage, significant additional damage not included in the joint survey report is discovered. In order to substantiate the additional damage as properly recoverable from the opposing interests, the Navy should take what action? 1. 2. Convene a new survey of all known collision damage Notify the opposing interests and provide them with an opportunity to survey before the additional damage is repaired Accomplish the additional repairs on a separate job order Amend the original survey report, and send a copy to the opposing interests

1-49.

Which of the following statements about a collision is correct? 1. Sheets of paper containing rough navigational or other data should be destroyed as soon as possible to avoid later liability Clocks on the bridge and in CIC and the engine room should be compared as soon as possible A list should be prepared of all persons on the bridge or in CIC, except watchstanders, when the collision occurred All unclassified messages about the collision should be collected, and all classified messages should be shredded

2.

3. 4.

3.

1-53.

4.

Under what specific circumstance is the United States entitled to recover detention costs because of collision damage to a Navy ship? 1. When the vessel must be withdrawn from regular service to accomplish the repairs When the vessel must be repaired in a commercial shipyard When the collision will be repaired during a regularly scheduled overhaul When the vessels loss of profits exceeds a predetermined amount

1-50.

In order to properly account for collision repairs, all such repairs to Navy ships must be accomplished at Navy shipyards. 1. 2. True False

2. 3. 1-51. While collision repairs are being accomplished, which of the following statements describes the proper treatment of noncollision repairs? 1. They may not be done even though it may be a convenient opportunity to undertake such repairs They may proceed concurrently, but must be covered by separate job orders They may proceed concurrently, but must not be covered by a job order They may proceed without regard to collision repairs; the cost of all repairs will be asserted against the party responsible for the collision, since such expenses are being incurred prematurely 1-54. 4.

Which, if any, of the following expenses could be included in the detention costs asserted on behalf of a laid up Navy ship? 1. 2. 3. 4. Dry-docking expenses Personnel claims paid to crew members Survey fees None of the above

2.

3. 4.

64

1-55.

Which of the following statements about investigations of shipboard personal injury incidents is NOT correct? 1. In the investigative report, identify all of the logs inspected for entries about the incident, and not just those logs in which relevant information was found If a witness to the incident is unwilling to provide information, every effort should be made to determine the persons full name, address, employer, and other identifying information The investigating officer should obtain witness statements instead of preparing summaries of Interviews The investigating officer should include relevant naval medical records in the report, but need not attempt to obtain detailed medical records from a civilian physician or the injured party

1-57.

When the individual inspecting the location of a shipboard personal injury detects a hazardous or defective condition that might have contributed to the accident, the individual should take what action? 1. Attempt to determine how long the condition had been in existence, and whether it was known to ships personnel Determine whether the condition was caused by Navy personnel and, if so, correct the condition immediately before it becomes known to the victims attorney Locate and discard PMS and other maintenance records regarding the applicable space or equipment Photograph the location if the hazardous or defective condition was caused by nonNavy personnel

2.

2.

3.

3.

4.

4.

1-58.

1-56.

Which of the following statements explain(s) the purpose(s) for conducting an immediate and detailed inspection of an accident location after a visitor is injured on board a Navy ship? 1. 2. To assist the accident victim in prosecuting a claim against the Navy To gather information useful in refuting an unfounded claim that negligence on the part of the ship and its crew caused the victims injury To determine the likely cause of the accident Both 2 and 3 above

Because shore workers who witness a personal injury incident involving a fellow shore worker are likely to give statements about the occurrence to their employer, it is particularly important to seek copies of accident reports and like materials from the victims employer, the shipyard safety office, and the cognizant office of the Supervisor of Shipbuilding, Conversion and Repair, USN. 1. 2. True False

3. 4.

65

1-60. Learning Objective: Specify the limitations on correspondence and discussion with potential claimants and their representatives.

1-59.

The ships legal officer, upon learning that a visitor was injured while on board the vessel, goes to sick bay where the victim is being given first aid. Hoping to head off a claim against the Navy, the legal officer sympathetically advises the victim to send the medical bills to my attention, and I will see that they get taken care of. This action by the legal officer is not correct for which of the following reasons? 1. 2. The legal officer does not have settlement authority for admiralty claims The victim may be misled concerning the fact of or extent of the Navys liability for the accident When prosecuting a claim or conducting litigation arising from the accident, the victims attorney is likely to argue that the advice amounts to an admission of liability All of the above

Because such requests often precede claims or lawsuits against the United States, a command receiving requests for copies of Navy investigations or records relating to an admiralty incident, or for access to Navy property or interviews with service members about admiralty matters, should immediately report such requests to which of the following offices? 1. 2. 3. 4. The local Naval Legal Service Office The Office of the Judge Advocate General [Code 11) The Department of Justice or local U.S. Attorneys office All of the above

3.

4.

66

Assignment

2
a Primer; and

Admiralty Law and Its Application in Navy Admiralty Claims Practice: JAG Manual, chapter XII (both continued) Textbook Assignment: This assignment 42 through 53. booklet, pages 16 through 27 and

2-3. Demonstrate Learning Objective: an understanding of the extent of and conditions for Government liability in admiralty matters pursuant to various statutes.

In order to avoid missing the statute of limitation, the injured Delaware resident must file his lawsuit within what specific time period? 1. 2. 6 months after the date of the injury 6 months after his claim is denied 2 years after the date of the injury 2 years after his claim is denied

2-1.

Under what condition if any, may a private citizen bring suit against the United States for damage caused by the tug USNS MOHAWK (T-ATF 170)? 2-4. 1. 2. If Congress expressly agrees to waive immunity for that suit If the litigation could reasonably result in a greater award than is likely to be offered in settlement of a claim If a lawsuit could be brought by that citizen against a private person or corporation under similar circumstances None; a U.S. citizen may not sue the Government for damage caused by a USNS vessel

3. 4.

In what way, if any, did the Admiralty Jurisdiction Extension Act affect the liability of the United States for admiralty incidents involving the Navy? 1. Extended the Governments liability to include damage or injury caused by acts of Navy employees, even though a vessel was not involved in the incident Made the Government liable when damage occurs on land, as well as on water, as a result of an admiralty incident Extended the liability of the Government to personal injuries, as well as property damage, caused by admiralty incidents No effect whatsoever

3.

2.

4.

2-2.

Assume that a resident of Delaware is injured when his anchored sailboat is struck by Navy YD 99 in Little Creek, Virginia, harbor, where the YD is permanently assigned. If the injured person decides to bring suit under the Public Vessels Act, where must the suit be filled? 1. 2. 3. 4. United States District Court for the Eastern District of Virginia United States District Court for the District of Delaware United States District Court, Washington, DC Suit may be brought in any United States District Court

3.

4.

67

2-7. Learning Objective: Specify the authority, policies, and procedures for settlement of admiralty claims against the Navy, including the responsibilities of the claimant, assigned admiralty attorney, and adjudicating authority.

Assume that repeated efforts to negotiate settlement of an admiralty claim against the Government have been unsuccessful, and it appears certain that settlement cannot be accomplished before the expiration of the statute of limitation. To ensure that the claimant is not denied appropriate relief , what action should be taken? 1. The claimant must submit a written request for an extension of the limitation period The Judge Advocate General must toll the statute of limitation by administrative declaration The claimant must file suit in the appropriate United States District Court The negotiating Judge advocate must certify that the claim was received within the statutory period in

2-5.

Admiralty claims settled for an amount exceeding $1,000,000 must be certified to the Attorney General for approval. 1. 2. True False

2.

2-6.

Suppose a claimant settles a claim against the Navy. A few weeks after depositing the settlement check, he discovers that the agreed amount will not be sufficient to cover all of his losses. What recourse. If any, does he have? 1. In order to recover his uncompensated losses, he will have to file suit against the United States He may recover his uncompensated losses by filing a supplemental claim with the Navy He may renegotiate the earner settlement, but only with a different adjudicating authority None

3. 4.

2-8.

What is the Navys policy concerning admiralty claims situations involving Navy liability? 1. 2.

2.

3.

4.

3. 4.

Settle and pay claims under $10,000 upon a determination of Navy liability Shift the burden of payment to the Department of Justice by refusing payment of large claims, thus forcing the claimant to resort to litigation Effect a fair and prompt settlement, regardless of the size of the claim Utilize loopholes to avoid Navy responsibility and technicalities to frustrate claimants efforts at obtaining compensation

68

2-9.

Assume that a Navy destroyer collides with and sinks a fishing vessel in the Atlantic Ocean. Which of the following statements about possible claims arising therefrom is NOT correct? 1. The insurer of the fishing vessel, who compensated the vessel owner for the value of the vessel pursuant to the terms of the insurance contract, may properly claim for the amount paid to the owner The hospital that treated the vessels skipper, injured in the collision, may properly claim the cost of that medical care and treatment A crew member of the fishing vessel may properly claim for personal property lost in the incident The surviving wife of a fisherman who was killed in the incident may claim for wrongful death

2-11.

Assume a claim has been received seeking $500,000 for the alleged wrongful death of a shoreworker who died while working on board a Navy ship. Which of the following items of supporting evidence should be sought from the attorney representing the claimant? 1. Information on the victims employment history, including wages or salary earned and length of employment with the victims last employer A detailed physicians statement indicating the diagnosis, prognosis, and extent of any permanent disability Two itemized independent estimates of the cost of repairs All of the above

2.

2.

3.

3. 4. 2-12.

4.

2-10.

Which of the following statements about submission of an admiralty claim against the Navy is NOT correct? 1. 2. The claimant must specify the precise amount of money being sought from the Government In order for a claim to be presented, the claimant must include sufficient information to enable the Navy to identify and investigate the incident giving rise to the claim The claimant bears the burden of demonstrating that the Government is responsible for having caused the alleged damage or injury A claimant may be requested to provide a variety of supporting information; failure to provide the requested evidence will result in denial of the claim

What is the final test as to whether the administrative settlement of an admiralty claim is justified? 1. 2. 3. 4. Percentage of the amount claimed Difficulty of litigating the claim Availability of funds to pay the settlement Probable result if the claim were litigated

3.

4.

69

2-13.

Assume that a Navy admiralty attorney has offered to recommend that an admiralty claim be settled by payment of $8,200, and the claimant has agreed to accept that amount as full settlement of the claim. What is the next step to be taken? 1. Forward, via the appropriate administrative chain of command, a memorandum to the Secretary of the Navy recommending that the settlement be approved Forward, via the appropriate administrative chain of command, a memorandum to the Attorney General recommending that the settlement be approved Forward, via the appropriate administrative chain of command, a memorandum to the Deputy Assistant Judge Advocate General (Admiralty) recommending that the settlement be approved Forward to the claimant the settlement check, requesting that it be cashed in order to finalize the settlement

2-15.

2.

Assume that an injured shoreworker files a claim with the Office of the Judge Advocate General (Code 11) seeking $750,000 for injuries sustained while working on board USS INDEPENDENCE (CV 62). After reviewing the ships investigative report, the Deputy Assistant Judge Advocate General (Admiralty) determines that the Navy is not liable for the shoreworker s injuries. Because of the amount of the claim, the decision to deny the claim must be approved by the Secretary of the Navy. 1. 2. True False

3.

2-16.

When a claimant believes that an admiralty claim has been wrongly denied, he or she may seek an administrative appeal with the Board for Correction of Naval Records. 1. 2. True False

4.

2-17.

2-14.

Assume that the proposed settlement of an admiralty claim by payment of $5,000 to the claimant has been finally approved. What procedure normally is followed to obtain the claimants release? 1. Provide the claimant with a standard Navy release after he has received and cashed the settlement check Request return of a signed release before mailing the settlement check to the claimant Arrange a meeting at a location convenient to all parties where the release can be signed and the settlement check presented The claimants signature on the settlement check constitutes his release

Assume that an admiralty claim has been filed with the Navy and is pending resolution when the claimant files suit against the Government. What is the effect of the claimants action? 1. 2. 3. Filing suit is likely to speed up the process of settling the claim Filing suit will have no effect whatsoever on the pending claim Fillng suit deprives the Secretary of the Navy of the authority to settle the claim The lawsuit will be dismissed because the claimant failed to exhaust his administrative remedy before fillng suit

2.

3.

4.

4.

70

2-18.

An admiralty claim may be paid after the expiration of the statute of limitation if the settlement was agreed between the parties and approved by the proper Navy adjudicating authority before the expiration of the limitation period. 1. 2. True False arising from an admiralty overseas may be settled to the Foreign Claims Act permission of the Judge General.

2-22.

The Secretary of the Navy has delegated his affirmative claims settlement authority, up to specified limits, to which of the following individual(s)? 1. 2. 3. 4. The Assistant Judge Advocate General (Civil Law) Commander in Chief U.S. Naval Forces, Europe Commander, Sixth Fleet All of the above

2-19.

A claim incident pursuant with the Advocate 1. 2.

2-23.

True False

The United States must commence litigation against the party responsible for damaging Navy property in an admiralty incident within what limitation period? 1. 2. 3 years from the date of the incident 2 years from the date of the incident 3 years from the date of the denial of the Governments affirmative claim 6 months from the date of the denial of the Governments affirmative claim

Learning Objective: Specify the authority, policies, and procedures for asserting and settling the Navys affirmative admiralty claims, particularly the responsibilities of the assigned admiralty attorney and adjudicating authority.

3. 4.

2-20.

When persons or vessels cause damage to Navy property, the Navy is entitled to pursue affirmative admiralty claims by virtue of the authority contained in the Suits in Admiralty Act. 1. 2. True False

2-21.

The Secretary of the Navy has authority to settle affirmative admiralty claims up to what maximum amount? 1. 2. 3. 4. $10,000 $100,000 $1,000,000 $10,000,000

71

2-24.

Assume that the admiralty attorney assigned a particular affirmative claim sends a letter to the tortfeasor asserting the Navys intention to hold the tort-feasor responsible for damaging a Navy ship. Accompanying the demand letter is a damage statement establishing that the cost of repairing the ship was $130,000. A few weeks later the attorney receives, by return mail, a check from the tort-feasors insurance company for $130,000 and a draft release to be returned to the Under these circumstancompany. ces, the attorney should take what action next? 1. Deposit the check in the U.S. Treasury , and execute the release on behalf of the Secretary of the Navy Secure the check and release while obtaining final approval of the settlement from the Secretary of the Navy Secure the check and release while obtaining final approval of the settlement from the Judge Advocate General Cash the check, burn the release, and flee the country

2-26.

After the United States has filed suit against the party responsible for damaging Navy property in an admiralty incident, who may negotiate a settlement with the defending party? 1. 2. 3. 4. The Secretary of the Navy The Deputy Assistant Judge Advocate General (Admiralty) The admiralty attorney assigned the case at the Admiralty Division (Code 11) A representative of the Department of Justice

2.

Learning Objective: Demonstrate an understanding of authority and procedures applicable to salvage claims by and against the Navy.

3.

2-27.

Affirmative salvage claims are asserted for the Navy by the 1. 2. 3. Department of Justice Assistant Supervisor of Salvage, USN Office of the Judge Advocate General (Code 11) Military Sealift Command

4. 2-25.

Which of the following statements about affirmative claims adjudication is NOT correct? 2-28. 1. An investigative report (either letter report or JAG Manual investigatiion) must be prepared when an admiralty incident occurs involving a potential affirmative claim Proceeds received from affirmative claims normally are deposited into the account of the command suffering the damage All proposed settlements of affirmative admiralty claims are evaluated by comparing them to the likely results were the claims to be litigated Upon approval of the settlement and receipt of the proceeds, the Deputy Assistant Judge Advocate General (Admiralty) normally will execute a release on behalf of the Secretary of the Navy

4.

2.

As an administrative convenience, Navy affirmative salvage claims normally are calculated and asserted on a per diem basis, rather than by seeking an award based upon the value of the salved property and consideration, of other factors. 1. 2. True False

3.

4.

72

2-29.

Assume that an Alaskan fisherman retrieves a reusable Navy target drone from the Bering Sea, where it had been lost during a fleet The target was lost by exercise. the Navy on 1 November 1985; it was recovered by the fisherman on 1 December 1985. In order to succeed in a salvage claim, the claim must be 1. 2. 3. 4. filed not later than 1 June 1986 approved not later than 1 November 1987 approved not later than 1 December 1987 filed not later than 1 November 1988

2-32.

2-30.

For the case described in the preceding question, who is entitled to claim a salvage award? 1. 2. 3. 4. The owner of the fishing vessel only The crew aboard the fishing vessel at the time of the salvage only Both the owner and the crew of the fishing vessel The Assistant Supervisor of Salvage, USN

Assume that the enlisted crew of a Navy motorwhale boat is conducting coxswain training in the waters off Port Hueneme, California, when they see the occupants of a small pleasure boat frantically waving at them. The crew promptly steers the motorwhale boat toward the pleasure craft and discovers it is drifting out to sea without power or communications capability, and that one of the occupants, an elderly gentleman, is complaining of chest pains. Assistance is called for on the motorwhale boats radio, and the pleasure craft is taken in tow. The ill gentleman is soon picked up by a Coast Guard speedboat and taken to a hospital, where he recovers. The pleasure craft is towed to safety by the Navy boat. Which of the following statements regarding these events is correct? 1. 2. The Navy is entitled to a salvage award for saving the pleasure craft The Navy is entitled to a salvage award for saving the gentlemans life The crew of the Navy boat is entitled to a salvage award separate from that claimed by the Navy Each of the above

3. 2-31. Assume that a Navy tug salvages a commercial vessel , and a claim is asserted by the Navy against the The owner vessel and its owner. files an offsetting claim against the Navy for damage suffered by his vessel during the assistance. In this situation, the Navy probably would 1. 2. 3. withdraw its per diem salvage claim and assert a salvagebonus claim for a higher value withdraw its per diem salvage claim and file suit against the vessel and its owner amend its per diem salvage claim to include the amount being sought by the vessel owner abandon its per diem salvage claim on condition that the vessel owner does likewise

4.

4.

73

2-35. Demonstrate Learning Objective: an understanding of principles applicable to special maritime cases involving towage, pilotage, and waiver situations. 2-33. What distinction, if any, have U s . courts made concerning liability for negligent performance of towage services and pilotage services? 2-36. 1. The Navy may not be held liable for negligent towage, but may be held liable for negligent pilotage Persons providing towage services may exempt themselves by contract from liability for their negligent acts, but those providing pilotage services may not Persons providing pilogage services may exempt themselves by contract from liability for their negligent acts, but those providing towage services may not None

A claim arising from which of the following incidents is subject to waiver? 1. 2. Damage to a Navy vessel by an Air Force helicopter Damage to a Navy pier by a National Oceanic and Atmospheric Administration survey boat A collision between Navy and Coast Guard training vessels Each of the above

3. 4.

The doctrine of waiver of claims arising from incidents involving only different departments of the Federal Government is based on what determination? 1. Appropriatuons of one department cannot be used to pay the claims of another department There can be no liability between agents of the same employer Claims between different agencies of the same government represent conflicts of interest There is no fair or adequate method for determining the extent of damages in such cases

2.

2. 3.

3.

4. 2-34.

4.

When the Navy agrees to provide a pilot and associated tug services to a privately-owned vessel, why should the language contained in JAGMAN Appendix A-12-a be incorporated into the contract? 1. To provide notice that the Navy does not consent to liability for any damage occurring while it provides such services To enable the Navy to claim and recover any damages resulting from the operation To document the aided vessels agreement to pay for the services provided by the Navy To ensure the Navy enjoys the same protection from liability that a commercial firm enjoys under similar circumstances

2-37.

2.

The provision mandating waiver of claims arising from incidents involving only different departments of the Federal Government applies to final settlement of claims, but does not affect the requirements that an investigative report of the incident be prepared and a joint survey of the damage be conducted. 1. 2. True False

3. 4.

74

2-38.

Assume that a British submarine, outbound from Port Canaveral, Florida, collides with a Navy escort ship, causing extensive The collision damage to the ship. occurs within U.S. territorial waters. The Navys claim will be 1. paid by the British government upon a demonstration that the submarine was negligently operated paid by the British government pursuant to treaty obligations, without any need to demonstrate negligence by the submarine barred by application of the Foreign Sovereign Immunities Act barred by operation of a waiver agreement, applicable to such claims, between the U.S. and Great Britain

Learning Objective: Specify the policies of the Navy regarding participation in and cooperation with investigations of maritime accidents conducted by the Coast Guard and NTSB.

2-41.

2.

3. 4.

Naval personnel are not required to report a marine casualty involving a U.S. Navy vessel to the Coast Guard, complete any Coast Guard form or other document describing the incident, or participate in a Coast Guard investigation of the incident. 1. 2. True False

2-42. 2-39. Although American law exempts U.S. Navy vessels from arrest, such vessels may be lawfully arrested in foreign ports. 1. 2. 2-40. True False

As a matter of policy, the Navy renders the fullest possible cooperation to Coast Guard investigations of marine casualties, provided that which of the following conditions is met? 1. 2. 3. Important Navy interests are not harmed thereby Only civil liabilities issues are involved Any official records furnished are included in the public Coast Guard report Navy records are not required

A vessel owned by a foreign government may forfeit its immunity from arrest in the United States under what conditions? 1. 2. 3. 4. The vessel is engaged in a competitive commercial enterprise The vessel is suspected of violating U.S. customs or immigration laws The vessel is involved in a maritime accident within U.S. territorial waters The vessel is operated in such a manner that it constitutes a hazard to navigation

4. 2-43.

The decision whether U.S. Navy personnel will be permitted to testify at a Coast Guard investigative hearing is made by what individual? 1. 2. 3. 4. The commanding officer of the affected service member The local Judge advocate where the service member is stationed The Judge Advocate General of the Navy The commandant of the Coast Guard District where the hearing is being held

75

2-44.

What is the primary consideration in determining whether Navy personnel will be permitted to testify at a Coast Guard investigation? 1. The effect on public opinion of falling to provide the witness Protection of the United States position in the event of litigation arising from the incident Whether the witness testimony will be favorable to the Navy The appearance and demeanor of the witness

2-47.

2.

3. 4. 2-45.

Assume that Military Sealift Commands oceanographic research vessel USNS DUTTON (T-AGS 22) is refueling underway from a civilian tanker operating under contract with MSC. During the UNREP, DUTTON suffers a steering casualty because of poor maintenance of steering equipment. The resulting inability to stay on station causes the span wire to part, and the whip action injures a number of people on both ships. Which of the following persons may expect to recover damages upon filing an admiralty claim lawsuit against the Navy? 1. A Navy E-4, riding DUTTON as a member of the Oceanographic Unit Detachment, who was observing the UNREP out of curiosity A civil service officer on DUTTON who was supervising a refueling station during the UNREP A seaman, employed by the contractor operating the tanker, who was walking across the weather deck to the galley for chow when the accident occurred All of the above

A National Transportation Safety Board (NTSB) investigation of a marine casualty does not take priority over other official inquiries into the incident, such as the Navys own JAG Manual investigation. 1. 2. True False

2.

2-46.

Unlike Coast Guard investigators, the NTSB has the power to subpoena Navy witnesses and documents when investigating a marine casualty. 1. 2. True False 2-48. Learning Objective: Demonstrate an understanding of basic legal principles applicable to admiralty personal injury cases.

3.

4.

The standard for determining liability to an injured ship visitor is whether the ship took every possible measure to ensure that the ship was made safe for visitors. 1. 2. True False

2-49.

Assume that a civilian visitor trips and falls over an uneven place in a ships deck during an "Open House" weekend. Liability of the Government likely will depend on which of the following considerations? 1. 2. The warnings given to the visitor about the hazard How obvious or hidden the hazard was to a visitor unfamiliar with the ship The reason why the uneven place in the deck existed All of the above

3. 4.

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2-50.

If a civilian Federal employee is injured in the course of employment in an admiralty incident, the investigative responsibilities of the Navy command are likely to be streamlined since these persons are barred from obtaining relief from the Government through an admiralty claim or litigation. 2-54. 1. 2. True False

Demonstrate Learning Objective: an understanding of basic legal principles applicable in various admiralty damage cases.

2-51.

Assume that a shoreworker, employed by Ace Cleaning Co., a subcontractor of West Coast Shipyard, is injured while working on board USS HEWITT (DD 966), then located at the shipyard for overhaul. The shoreworker is barred from recovering damages for his injury in a lawsuit against which of the following parties? 1. 2. 3. 4. Ace Cleaning Co. West Coast Shipyard United States All of the above

Assume that a Canadian warship arrives at Naval Station, San Diego, for an official port visit in connection with its participation in joint exercises in the Eastern Pacific Ocean. The ships approach is too fast, and it strikes the pier hard, damaging four pier pilings. This type of incident is described by what specific term? 1. 2. 3. 4. A collision An allision A shore station injury An inexcusable blunder

2-55.

2-52.

With respect to shoreworkers, exercising reasonable care for their safety includes ensuring that which of the following conditions is met? 1. Having the ship and its equipment in generally safe condition when the worker enters to do his work Supervising a shoreworkers operations to ensure that no dangerous conditions develop Guaranteeing an accident-free worksite for the shoreworker Each of the above

Which of the following statements about the incident described in the preceding question is NOT correct? 1. The incident must be reported to the Office of the Judge Advocate General (Code 11) pursuant to JAGMAN chapter 12 An investigative report (either letter report or JAG Manual investigation) must be prepared and forwarded to the Office of the Judge Advocate General (Code 11) A presumption of fault on the part of the Canadian vessel exists The Navy will not recover the cost of repairing the pier from the Canadians

2.

2. 3. 4. 2-53.

3.

4. A shipowner has no general duty to monitor a shoreworkers performance for the purpose of discovering dangerous conditions which may develop, unless such a duty arises pursuant to contract or because of the vessel owners active involvement and control over the shoreworkers operations. 1. 2. True False

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2-56.

Assume that USS JOHN HANCOCK (DD 981) is making a port call at Annapolis, Maryland, in connection with graduation week activities at As the the U.S. Naval Academy. ship is proceeding slowly toward its designated anchorage, a sailboat with a NO NUKES protest message on its sail crosses ahead The boat then turns of the ship. to attempt another crossing; however, a sudden gust of wind causes the sailboat to strike the Which starboard bow of the ship. of the following statements about the incident is correct? 1. 2. 3. 4. The incident is a collision A presumption of fault on the part of the sailboat exists Because the incident is minor, it need not be reported and investigated Each of the above

2-59.

Application of the PENNSYLVANIA Rule is likely to affect recovery in which of the following cases? 1. A fishing vessel off the California coast is not displaying the proper dayshapes indicating the length and direction of its nets when a submerged submarine runs through those nets. The fisherman claims against the Navy for his losses The stern light iS not working on a Navy YP on the night when the YP collides with a buoy in Charleston harbor, knocking it off The Charleston station. Port Authority claims against the Navy for the costs of restoring the buoy to station Neither an inbound Navy frigate nor an outbound lobster boat sound the required signals before attempting to pass each other in the channel approaching Bath, Maine; the vessels collide. The lobsterman claims against the Navy for the damage to his boat All of the above

2.

2-57.

With respect to the incident described in the preceding question, the primary law used to analyze liability is the International Regulations for Preventing Collisions at Sea, 1972), also known as 72 COLREGS. 1. 2. True False

3.

2-58.

The PENNSYLVANIA Rule is best defined by which of the following statements? 1. If a vessel involved in a collision was, at the time of the incident, violating any navigation rule, that vessel will be liable for the other vessels damage When a collision results from violations of the navigation rules by both vessels, each vessel will bear one-half of the other vessels damage or losses If an allision occurs notwithstanding the moving vessel`s compliance with all navigation rules, the moving vessel will not be held liable for the damage A vessel violating any navigation rule cannot escape responsibility for a collision unless it can prove that its violation did not cause and could not have contributed to the mishap

4. 2-60.

Which of the following statements describes a defense that is most likely to be accepted against an allegation that the wake from a Navy ship caused damage to another vessel? 1. That the Navy ship was proceeding at its usual speed for the channel through which it was travelling That the crew of the Navy ship did not notice the vessel that now claims to have been damaged by the ships wake That the vessel claiming damage was inadequately moored at the time the Navy ship passed it That the vessel claiming damage was not manned at the time the Navy ship passed it

2.

2.

3.

3.

4.

4.

78
*U.S. GOVERNMENT PRINTING OFFICE: 1995 - 633 - 130 / 20082

NETPMSA 1550/31 (Rev. 1-95)

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